SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 14, 2016 among SIGNET GROUP LIMITED SIGNET GROUP TREASURY SERVICES INC. and STERLING JEWELERS INC., as Borrowers SIGNET JEWELERS LIMITED, as Parent The Additional Borrowers Party Hereto and...

Exhibit 10.1

 

---

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of

 

July 14, 2016

 

among

 

SIGNET GROUP LIMITED

SIGNET GROUP TREASURY SERVICES INC. and

STERLING JEWELERS INC.,
as Borrowers

SIGNET JEWELERS LIMITED,
as Parent

 

The Additional Borrowers Party Hereto

 

and

 

The Lenders Party Hereto

 

JPMORGAN CHASE BANK, N.A.
as Administrative Agent

 

PNC BANK, NATIONAL ASSOCIATION and ▇▇▇▇▇ FARGO BANK, N.A.
as Co-Syndication Agents

 

and

 

CITIZENS BANK, N.A., FIFTH THIRD BANK, HSBC BANK USA, N.A. and U.S. BANK, NATIONAL ASSOCIATION

as Co-Documentation Agents

 

———————————

 

JPMORGAN CHASE BANK, N.A., PNC CAPITAL MARKETS LLC and ▇▇▇▇▇ FARGO SECURITIES LLC
as Joint Bookrunners and Joint Lead Arrangers

 

TABLE OF CONTENTS

 

 

	Page
ARTICLE I Definitions	1
SECTION 1.01.   Defined Terms	1
SECTION 1.02.   Classification of Loans and Borrowings	31
SECTION 1.03.   Terms Generally	31
SECTION 1.04.   Accounting Terms; GAAP	31
SECTION 1.05.   EBITDAR Adjustment	32
SECTION 1.06.   Status of Obligations	32
ARTICLE II The Credits	33
SECTION 2.01.   Commitments	33
SECTION 2.02.   Loans and Borrowings	33
SECTION 2.03.   Requests for Borrowings	34
SECTION 2.04.   Determination of Dollar Amounts	35
SECTION 2.05.   Swingline Loans	36
SECTION 2.06.   Letters of Credit	37
SECTION 2.07.   Funding of Borrowings	41
SECTION 2.08.   Interest Elections	42
SECTION 2.09.   Termination and Reduction of Commitments	44
SECTION 2.10.   Repayment of Loans; Evidence of Debt	44
SECTION 2.11.   Prepayment of Loans	45
SECTION 2.12.   Fees	46
SECTION 2.13.   Interest	47
SECTION 2.14.   Alternate Rate of Interest	48
SECTION 2.15.   Increased Costs	48
SECTION 2.16.   Break Funding Payments	49
SECTION 2.17.   Taxes	50
SECTION 2.18.   UK Tax	53
SECTION 2.19.   Payments Generally; Pro Rata Treatment; Sharing of Set-offs	58
SECTION 2.20.   Mitigation Obligations; Replacement of Lenders	60
SECTION 2.21.   Expansion Option	60
SECTION 2.22.   Judgment Currency	62
SECTION 2.23.   Designation of Additional Borrowers	62
SECTION 2.24.   Defaulting Lenders	63

ARTICLE III Representations and Warranties	64
SECTION 3.01.   Organization; Powers; Subsidiaries	64
SECTION 3.02.   Authorization; Enforceability	65
SECTION 3.03.   Governmental Approvals; No Conflicts	65
SECTION 3.04.   Financial Condition; No Material Adverse Change	65
SECTION 3.05.   Properties	65
SECTION 3.06.   Litigation, Environmental and Labor Matters	65
SECTION 3.07.   Compliance with Laws and Agreements	66
SECTION 3.08.   Investment Company Status	66
SECTION 3.09.   Taxes and UK Tax	66
SECTION 3.10.   ERISA; Non-U.S. Pension Plans	66
SECTION 3.11.   Disclosure	67
SECTION 3.12.   Federal Reserve Regulations	67
SECTION 3.13.   No Default	67
SECTION 3.14.   Anti-Corruption Laws and Sanctions	67
ARTICLE IV Conditions	68
SECTION 4.01.   Restatement Effective Date	68
SECTION 4.02.   Each Credit Event	69
SECTION 4.03.   Designation of an Additional Borrower	69
ARTICLE V Affirmative Covenants	70
SECTION 5.01.   Financial Statements and Other Information	70
SECTION 5.02.   Notices of Material Events	71
SECTION 5.03.   Existence; Conduct of Business	72
SECTION 5.04.   Payment of Taxes and UK Tax	72
SECTION 5.05.   Maintenance of Properties; Insurance	72
SECTION 5.06.   Books and Records; Inspection Rights	73
SECTION 5.07.   Compliance with Laws and Material Contractual Obligations	73
SECTION 5.08.   Use of Proceeds	73
SECTION 5.09.   Material Subsidiaries; Guaranty	73
ARTICLE VI Negative Covenants	74
SECTION 6.01.   Subsidiary Indebtedness	74
SECTION 6.02.   Liens	75
SECTION 6.03.   Fundamental Changes and Asset Sales	76
SECTION 6.04.   Investments, Loans, Advances, Guarantees and Acquisitions	77

SECTION 6.05.   Transactions with Affiliates	78
SECTION 6.06.   Restricted Payments	79
SECTION 6.07.   Financial Covenants	79
ARTICLE VII Events of Default	79
ARTICLE VIII The Administrative Agent	82
ARTICLE IX Miscellaneous	84
SECTION 9.01.   Notices	84
SECTION 9.02.   Waivers; Amendments	85
SECTION 9.03.   Expenses; Indemnity; Damage Waiver	87
SECTION 9.04.   Successors and Assigns	88
SECTION 9.05.   Survival	91
SECTION 9.06.   Counterparts; Integration; Effectiveness	92
SECTION 9.07.   Severability	92
SECTION 9.08.   Right of Setoff	92
SECTION 9.09.   Governing Law; Jurisdiction; Consent to Service of Process	92
SECTION 9.10.   WAIVER OF JURY TRIAL	93
SECTION 9.11.   Headings	94
SECTION 9.12.   Confidentiality	94
SECTION 9.13.   USA PATRIOT Act	94
SECTION 9.14.   Releases of Subsidiary Guarantors	95
SECTION 9.15.   No Novation	95
SECTION 9.16.   Acknowledgement and Consent to Bail-In of EEA Financial Institutions	95
ARTICLE X Cross-Guarantee	96

 

SCHEDULES:

 

Schedule 2.01 – Commitments

Schedule 2.06 -- Existing Letters of Credit

Schedule 3.01 -- Subsidiaries

Schedule 6.01 -- Existing Indebtedness

Schedule 6.02 -- Existing Liens

 

EXHIBITS:

 

Exhibit A	--	Form of Assignment and Assumption
Exhibit B	--	Form of Compliance Certificate
Exhibit C	--	Form of Increasing Lender Supplement
Exhibit D	--	Form of Augmenting Lender Supplement
Exhibit E-1	--	Form of Additional Borrower Agreement
Exhibit E-2	--	Form of Additional Borrower Termination
Exhibit F-1	--	Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Not Partnerships)
Exhibit F-2	--	Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Partnerships)
Exhibit F-3	--	Form of U.S. Tax Certificate (Non-U.S. Participants That Are Not Partnerships)
Exhibit F-4	--	Form of U.S. Tax Certificate (Non-U.S. Participants That Are Partnerships)

AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of July 14, 2016 among SIGNET GROUP LIMITED, SIGNET GROUP TREASURY SERVICES INC., STERLING JEWELERS INC., SIGNET JEWELERS LIMITED, the ADDITIONAL BORROWERS from time to time party hereto, the LENDERS from time to time party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, PNC Bank, National Association and ▇▇▇▇▇ Fargo Bank, N.A., as Co-Syndication Agents, and Citizens Bank, N.A., Fifth Third Bank, HSBC Bank USA, N.A. and U.S. Bank, National Association, as Co-Documentation Agents.

 

WHEREAS, the Borrowers and Parent (each as defined below) entered into the Amended and Restated Credit Agreement, dated as of May 27, 2014 (as amended by the First Amendment to Credit Agreement, dated as of September 9, 2014, the “Existing Credit Agreement”), with the several lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and certain other parties; and

 

WHEREAS, the parties have agreed to amend and restate the Existing Credit Agreement as provided in this Agreement, which Agreement shall become effective upon the satisfaction of the conditions set forth in Section 4.01;

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree that on the Restatement Effective Date (as defined below) the Existing Credit Agreement shall be amended and restated in its entirety as follows:

 

ARTICLE I

Definitions

 

 

“ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.

 

 “Additional Borrower” means any direct or indirect Subsidiary (other than the Company and Signet Treasury) that becomes an Additional Borrower pursuant to Section 2.23 and that has not ceased to be an Additional Borrower pursuant to such Section.

 

“Additional Borrower Agreement” means an Additional Borrower Agreement substantially in the form of Exhibit E-1.

 

“Additional Borrower Termination” means an Additional Borrower Termination substantially in the form of Exhibit E-2.

 

“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

“Administrative Agent” means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.

 

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

 

“Affiliate” means, with respect to a specified Person, another Person that, at the time of determination, directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

“Aggregate Exposure” means, with respect to any Lender at any time, an amount equal to (a) until the Restatement Effective Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated or expired, the amount of such Lender’s Revolving Credit Exposure then outstanding.

 

“Aggregate Exposure Percentage” means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

 

“Aggregate Revolving Commitment” means the aggregate of the Revolving Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Restatement Effective Date, the Aggregate Revolving Commitment is $700,000,000.

 

“Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Canadian Dollars and (v) any other Foreign Currency agreed to by the Administrative Agent and each of the Revolving Lenders; provided that solely with respect to Letters of Credit, only the approval of the applicable Issuing Bank will be required.

 

“Agreement” has the meaning assigned to such term in the preamble hereto.

 

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.

 

“Applicable Revolving Percentage” means, with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Revolving Lender’s Commitment; provided that, in the case of Section 2.24 when a Defaulting Lender shall exist, “Applicable Revolving Percentage” shall mean the percentage of the Aggregate Revolving Commitment (disregarding any Defaulting Lender’s Revolving Commitment) represented by such Revolving Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Revolving Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.

 

“Applicable Term Percentage” means, with respect to any Term Lender, the percentage which such Lender’s Term Loan Commitment then constitutes of the aggregate Term Loan Commitments (or, at any time after the Restatement Effective Date, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).

“Applicable Rate” means, for any day, with respect to (a) any Term Loan or Revolving Loan, (i) that is a Eurocurrency Loan, the applicable rate per annum set forth below under the caption “Eurocurrency Spread” or (ii) that is an ABR Loan, the applicable rate per annum set forth below under the caption “ABR Spread” or (b)  the commitment fees payable hereunder in connection with Revolving Commitments, the applicable rate per annum set forth below under the caption “Commitment Fee Rate”, in each case, based upon the Fixed Charge Coverage Ratio applicable on such date:

 

 

For purposes of the foregoing,

 

 

“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

 

“Attributable Securitization Indebtedness” at any time shall mean the principal amount of Indebtedness which (i) if a Permitted Securitization is structured as a secured lending agreement, constitutes the principal amount of such Indebtedness or (ii) if a Permitted Securitization is structured as a purchase agreement, would be outstanding at such time under such Permitted Securitization if the same were structured as a secured lending agreement rather than a purchase agreement.

 

“Augmenting Lender” has the meaning assigned to such term in Section 2.21.

 

“Available Revolving Commitment” means, at any time with respect to any Revolving Lender, the Revolving Commitment of such Revolving Lender then in effect minus the Revolving Credit Exposure of such Revolving Lender at such time; it being understood and agreed that any Revolving Lender’s Swingline Exposure shall not be deemed to be a component of the Revolving Credit Exposure for purposes of calculating the commitment fee under Section 2.12(a).

 

“Availability Period” means the period from and including the Restatement Effective Date to but excluding the earlier of the Revolving Termination Date and the date of termination of the Revolving Commitments.

 

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

 

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

“Bank Levy” means (a) the UK bank levy as set out in Schedule 19 to the UK Finance ▇▇▇ ▇▇▇▇, and (b) any other levy or tax of a similar nature imposed in any jurisdiction in which the relevant party is incorporated, resident for tax purposes or carries on business through a permanent establishment by reference to the balance sheet or capital base (or any part of it) or liabilities or minimum regulatory capital or any combination thereof (and not by reference to income, profits or gains) of a bank, financial institution.

 

“Banking Services” means each and any of the following bank services provided to the Parent or any Subsidiary by any Lender or any of its Affiliates (or any Person that was a Lender or an Affiliate of a Lender at the time the applicable Banking Services Agreement was entered into, or, with respect to Banking Services entered into prior to the Restatement Effective Date, was a Lender as of the Restatement Effective Date or an Affiliate thereof): (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

 

“Banking Services Agreement” means any agreement entered into by the Parent or any Subsidiary in connection with Banking Services.

“Banking Services Obligations” means any and all obligations of the Parent or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.

 

“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

 

“Borrower” means the Term Loan Borrower, any Revolving Borrower or any Swingline Borrower.

 

"Borrower DTTP Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

(i)	where it relates to a Treaty Lender that is a Lender on the date on which this Agreement is entered into, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Schedule 2.01, and

 

 

 

(ii)

where it relates to a Treaty Lender that becomes a Lender after the date on which this Agreement is entered into or is an Increasing Lender or Augmenting Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Assignment and Assumption agreement, Increasing Lender supplement, Augmenting Lender supplement or as otherwise provided to the relevant Borrower or Administrative Agent in writing within fifteen days of the relevant Treaty Lender becoming a party to this Agreement, and

 

 

“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a Swingline Loan or (c) a Term Loan of the same Type converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.

 

“Borrowing Request” means (a) a request by any Revolving Borrower for a Revolving Borrowing in accordance with Section 2.03(a) or (b) a request by the Term Loan Borrower for a Term Loan Borrowing in accordance with Section 2.03(b),  as applicable.

 

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term “Business Day” shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in euro).

 

“Canadian Dollars” means the lawful currency of Canada.

 

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP as in effect on February 1, 2014, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP as in effect on February 1, 2014.

 

“CDOR Interpolated Rate” has the meaning set forth in the definition of CDOR Rate.

 

“CDOR Rate” means with respect to any Eurocurrency Loan denominated in Canadian Dollars for any Interest Period, the rate per annum equal to the average rate for bankers acceptances as administered by the Investment Industry Regulatory Organization of Canada (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page CDOR of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “CDOR Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted CDOR Interest Period”), then the CDOR Rate shall be the CDOR Interpolated Rate at such time.  “CDOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which that CDOR Screen Rate is available in Canadian Dollars) that is shorter than the Impacted CDOR Interest Period and (b) the CDOR Screen Rate for the shortest period (for which that CDOR Screen Rate is available for Canadian Dollars) that exceeds the Impacted CDOR Interest Period, in each case, at such time.

“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the Restatement Effective Date), of Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Parent; or (b) the Parent ceases to own and control, directly or indirectly, 100% of the Equity Interests of the Company or of any other Borrower.

 

“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided however, that notwithstanding anything herein to the contrary, the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Term Loans, Revolving Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Term Loan Commitment or a Revolving Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class.

 

“Co-Documentation Agent” means each of Citizens Bank, N.A., Fifth Third Bank, HSBC Bank USA, N.A. and U.S. Bank, National Association, in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.

 

“Co-Syndication Agent” means each of PNC Bank, National Association and ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as syndication agent for the credit facility evidenced by this Agreement.

 

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

 

“Commitment” means, as to any Lender, the sum of the Term Loan Commitment and the Revolving Commitment of such Lender.

 

“Company” means Signet Group Limited, a company organized under the laws of England and Wales.

 

“Compliance Certificate” has the meaning assigned to such term in Section 5.01(c).

 

“Computation Date” has the meaning assigned to such term in Section 2.04.

“Consolidated EBITDA” means, in respect of any Relevant Period, Consolidated Net Income plus, to the extent included in determining Consolidated Net Income, (i) interest expense  (including, without limitation, interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) for such Relevant Period (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under interest rate Swap Agreements, the amortization of any debt financing and/or receivables financing fees, costs and expenses (or fees, costs and expenses of any amendment related thereto) and the amount of all fees, costs and expenses which have been incurred and/or paid by a member of the Group in relation to the execution and delivery of, or any amendment to, the Existing Credit Agreement, this Agreement, the Loan Documents or documentation in connection with any other debt financing and/or receivables financing), (ii) income tax expenses (benefits), (iii) depreciation and (iv) amortization, all calculated for the Group in accordance with GAAP on a consolidated basis; provided that, for the avoidance of doubt, Consolidated EBITDA shall exclude any material profits or losses recognized that result from the sale of a long-lived asset or a disposal group regardless of whether such a sale qualifies as a discontinued operation under FASB ASC 205-20, the costs associated with exit activities (as defined under FASB ASC 420-10 “Exit or Disposal Cost Obligations”), material infrequently occurring items and extraordinary items (in the case of extraordinary items as defined in FASB ASC 225-20 “Extraordinary and Unusual Items”) for such Relevant Period and as identified on the Compliance Certificate. For the purposes of calculating Consolidated EBITDA for any Relevant Period pursuant to any determination of the Leverage Ratio, (i) if at any time during such Relevant Period any member of the Group shall have made any Material Disposition, the Consolidated EBITDA for such Relevant Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Relevant Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Relevant Period and (ii) if during such Relevant Period any member of the Group shall have made a Material Acquisition, Consolidated EBITDA for such Relevant Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Relevant Period.  As used in this definition, “Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by members of the Group in excess of $50,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to members of the Group in excess of $50,000,000.

 

“Consolidated EBITDAR” means, in respect of any Relevant Period, Consolidated EBITDA plus, an amount equal to Rents and Operating Lease Expenditure of the Group for such Relevant Period.

 

“Consolidated Fixed Charges” means, in respect of any Relevant Period, Consolidated Net Interest Expense of the Group for such Relevant Period plus Rents and Operating Lease Expenditure for such Relevant Period.

 

“Consolidated Net Income” means, in respect of any Relevant Period, the consolidated net income (or loss) of the Group, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with any member of the Group and (b) the income (or deficit) of any Person (other than a Subsidiary) in which any member of the Group has an ownership interest, except to the extent that any such income is actually received by a member of the Group in the form of dividends or similar distributions.

 

“Consolidated Net Indebtedness” means, at any time, the aggregate amount of all obligations of the Group (and for the purposes of paragraph (j) of the definition of Indebtedness, the relevant entity, if not a member of the Group, which has incurred such Indebtedness) for or in respect of Indebtedness (other than Indebtedness of the type specified in clauses (h) and (i) of the definition thereof) but excluding any such obligation to another member of the Group, adjusted to take account of the aggregate amount of freely available cash and cash equivalents held by any member of the Group (and so that no amount shall be included or excluded more than once).

“Consolidated Net Interest Expense” means, in respect of any Relevant Period, the interest expense required to be paid in cash or accrued (including without limitation interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) of the Group calculated on a consolidated basis for such Relevant Period (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are allocable to such Relevant Period) in accordance with GAAP, minus the amount of any interest income received in cash or accrued by the Group in or in respect of such Relevant Period (including, without limitation, any periodic commission, fees, discounts and other finance payments receivable by the Group under any interest rate and/or currency hedging agreements or instruments).

 

“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the Group calculated in accordance with GAAP on a consolidated basis as of such date.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

“Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC Disbursement or any of the foregoing.

 

“Credit Party” means the Administrative Agent, each Issuing Bank, each Swingline Lender or any other Lender.

 

“CTA” means the United Kingdom Corporation Tax Act of 2009.

 

“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

“Defaulting Lender” means any Lender that (a) has failed, within three (3) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (d) has become (or any Lender Parent thereof has become) the subject of (A) a Bankruptcy Event or (B) a Bail-In Action.

 

“Disposition” means, with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof.

“Dollar Amount” of any currency at any date shall mean (i) the amount of such currency if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in Section 2.04.

 

“Dollars” or “$” refers to lawful money of the United States of America.

 

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

 

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

 

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

 

“Electronic Communication” means electronic mail, facsimile, telecopy, or other electronic communication as reasonably agreed to by the Parent or the Company and the Administrative Agent or the Issuing Bank, as applicable.

 

“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material.

 

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

 

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing.

 

“Equivalent Amount” of any currency with respect to any amount of Dollars at any date shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be determined.

 

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

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any U.S. Group Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure of any Plan to satisfy any minimum funding obligation pursuant to Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by a U.S. Group Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by a U.S. Group Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a U.S. Group Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of a U.S. Group Company or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by a U.S. Group Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a U.S. Group Company or any ERISA Affiliate of any notice, concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.

 

“EU” means the European Union.

 

“euro” and/or “EUR” means the single currency of the participating member states of the EU.

 

“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.

 

“Eurocurrency”, when used in reference to a currency means an Agreed Currency and when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.

 

“Eurocurrency Payment Office” of the Administrative Agent shall mean, for each Foreign Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Revolving Lender.

 

“Event of Default” has the meaning assigned to such term in Article VII.

 

“Exchange Act” means the Securities and Exchange Act of 1934, as amended.

 

“Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for the purchase of Dollars with such Foreign Currency, for delivery two (2) Business Days later; provided, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Company, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.

“Excluded Taxes” means, with respect to any payment made by any Loan Party under any Loan Document, any of the following Taxes (for the avoidance of doubt, other than UK Tax) imposed on or with respect to a Credit Party:

 

 

 

 

 

 

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

 

“Existing Credit Agreement” has the meaning assigned to such term in the recitals hereto.

 

“Existing Letters of Credit” means the letters of credit described in Schedule 2.06.

“Existing Revolving Loans” means “Revolving Loans” outstanding under the Existing Credit Agreement immediately prior to the Restatement Effective Date.

 

“Existing Term Loans” means “Term Loans” outstanding under the Existing Credit Agreement immediately prior to the Restatement Effective Date.

 

“Facility” means (a) the Term Loan Facility, (b) the Revolving Facility and (c) any Incremental Facility in respect of Incremental Term Loans.

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“FATCA” means 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 or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements implementing the foregoing, and any laws, fiscal or regulatory legislation, rules, guidance notes and practices implementing the foregoing.

 

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

 

“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.

 

“Financial Officer” means a chief executive officer, chief financial officer, principal accounting officer, treasurer or controller.

 

“Fixed Charge Coverage Ratio” has the meaning assigned to such term in Section 6.07(b).

 

“Foreign Currencies” means currencies other than Dollars.

 

“Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.

 

“Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign Currency.

 

“GAAP” means generally accepted accounting principles in the United States as in effect from time to time, subject to Section 1.04.

 

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

“Group” means the Parent and the Subsidiaries.

 

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

“Guaranteed Swap Agreement” means any Swap Agreement giving rise to Swap Obligations.

 

“Guarantor” means the Parent, each Borrower (with respect to Obligations of other Guarantors) and each Subsidiary Guarantor.

 

“Guaranty” means that certain Second Amended and Restated Guaranty dated as of the Restatement Effective Date (including any and all supplements thereto) and executed by each Subsidiary Guarantor party thereto, and, in the case of any guaranty by a Non-U.S. Subsidiary, any other guaranty agreements as are requested by the Administrative Agent and its counsel, in each case as amended, restated, supplemented or otherwise modified from time to time.

 

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“Hedge Obligation” means, with respect to any Person, any obligation to pay or perform under any Swap Agreement.

 

“Increasing Lender” has the meaning assigned to such term in Section 2.21.

 

“Incremental Facilities” has the meaning assigned to such term in Section 2.21.

 

“Incremental Revolving Increase” has the meaning assigned to such term in Section 2.21.

 

“Incremental Term Loan” has the meaning assigned to such term in Section 2.21.

 

“Incremental Term Loan Amendment” has the meaning assigned to such term in Section 2.21.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable incurred in the ordinary course of business and (ii) any earn-out obligation until such earn-out obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after becoming due and payable), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (j) all Attributable Securitization Indebtedness of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by any Loan Party under any Loan Document and (b) Other Taxes, for the avoidance of doubt, in either case, other than UK Tax.

 

“Information Memorandum” means the Confidential Information Memorandum dated June 2016 relating to the Parent, the Company and their respective subsidiaries and the Transactions.

 

“Initial Payment Date” has the meaning set forth in Section 2.10(b).

 

“Interest Election Request” means a request by the applicable Borrower to convert or continue a Borrowing in accordance with Section 2.08.

 

“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December and the final maturity date of such Loan, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the final maturity date of such Loan, (c) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof and (d) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Revolving Termination Date.

“Interest Period” means with respect to any Eurocurrency Borrowing (x) denominated in any currency other than Canadian Dollars, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is 7 days, one, two, three or six months thereafter, as the applicable Borrower (or the Company on behalf of the applicable Borrower) may elect and (y) denominated in Canadian Dollars, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the applicable Borrower (or the Company on behalf of the applicable Borrower) may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“Interpolated Rate” has the meaning set forth in the definition of LIBO Rate.

 

“Investment” has the meaning set forth in Section 6.04.

 

“IRS” means the United States Internal Revenue Service.

 

“Issuing Bank” means JPMorgan Chase Bank, N.A., Fifth Third Bank and PNC Bank, each in its capacity as the issuer of Letters of Credit hereunder, and their successors in such capacity as provided in Section 2.06(i), and such other Lenders as may be selected by the Company with the consent of such Lender to act in such capacity and the consent of the Administration Agent (the Administrative Agent’s consent not to be unreasonably withheld or delayed). Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

“ITA” means the United Kingdom Income Tax Act of 2007.

 

“LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).

 

“LC Disbursement” means a payment made by any Issuing Bank pursuant to a Letter of Credit.

 

“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Company at such time. The LC Exposure of any Lender at any time shall be its Applicable Revolving Percentage of the total LC Exposure at such time; provided that when a Defaulting Lender shall exist, the LC Exposure of any Revolving Lender shall be adjusted to give effect to any reallocation effected pursuant to Section 2.24.

 

“Lead Arrangers” means JPMorgan Chase Bank, N.A., PNC Capital Markets LLC and ▇▇▇▇▇ Fargo Securities LLC.

 

“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

 

“Lenders” means the Revolving Lenders, Term Lenders and, unless the context otherwise requires, the Swingline Lenders, in each case from time to time parties to this Agreement.

 

“Letter of Credit” means any letter of credit issued pursuant to this Agreement.

 

“Leverage Ratio” has the meaning assigned to such term in Section 6.07(a).

“LIBO Rate” means, (a) with respect to any Eurocurrency Loan for any Interest Period (other than a Eurocurrency Loan denominated in Canadian Dollars), a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for the applicable currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters Screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “Screen Rate”) at approximately 11:00 A.M., London time, two Business Days prior to the commencement (or, in the case of Loans denominated in Pounds Sterling, on the day of) of such Interest Period; provided that if the Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided, further, that, if the Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) with respect to the applicable currency, then the LIBO Rate shall be the Interpolated Rate at such time and (b) with respect to any Eurocurrency Loan denominated in Canadian Dollars for any Interest Period, the CDOR Rate for such period. “Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate for the longest period (for which that Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the Screen Rate for the shortest period (for which that Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time (provided that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement).

 

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

 

“Loan Documents” means this Agreement, any Additional Borrower Agreements, any Additional Borrower Terminations, the Guaranty, any promissory notes issued pursuant to Section 2.10(f) and any Letter of Credit applications executed and delivered by (in any such case) any Loan Party to, or in favor of, the Administrative Agent, any Issuing Bank, or any Lender. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.

 

“Loan Parties” means, collectively, the Parent, the Company, Signet Treasury, Sterling Jewelers Inc., the Additional Borrowers (if any) and the Subsidiary Guarantors.

 

“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.

 

“Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in Dollars and (ii) local time in the case of a Loan, Borrowing or LC Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).

“Majority Facility Lenders” means when used in reference to Lenders of either Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Credit Exposure and unused Revolving Commitments representing more than 50% of the sum of the total Revolving Credit Exposure and the unused Revolving Commitments at such time and (b) in the case of the Term Lenders, Lenders holding outstanding Term Loans (or Incremental Term Loans) representing more than 50% of the aggregate principal amount of all Term Loans outstanding at such time; provided that the Revolving Credit Exposure, outstanding Term Loans (or Incremental Term Loans) and unused Revolving Commitments of Defaulting Lenders shall not be included for purposes of determining “Majority Facility Lenders” of the applicable Class.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or condition (financial or otherwise) of the Group taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform any of their material obligations under this Agreement or (c) the validity or enforceability of this Agreement or any and all other Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.

 

“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Loan Parties in an aggregate principal amount exceeding $50,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Loan Parties in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Loan Parties would be required to pay if such Swap Agreement were terminated at such time.

 

“Material Subsidiary” means (i) on and after the Restatement Effective Date, each Subsidiary designated as a “Material Subsidiary” on Schedule 3.01 and (ii) after the Restatement Effective Date, any Subsidiary designated as a “Material Subsidiary” by the Company; provided that at no time shall any Subsidiary which is not a Material Subsidiary contribute greater than five percent (5%) of the Group’s Consolidated EBITDA or constitute greater than five percent (5%) of the Group’s Consolidated Total Assets, in each case as of the most recent fiscal quarter of the Parent, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01 and calculated on a consolidated basis (and, for the avoidance of doubt, excluding intercompany Indebtedness and other intercompany items). Notwithstanding the foregoing or anything else to the contrary in this Agreement, in no event shall (x) Sterling Jewelers Reinsurance Ltd., Sterling Jewelers Receivables Limited Corp. or any other Subsidiary that is a special purpose entity formed in connection with a Permitted Securitization or (y) Sterling Jewelers Insurance Agency Inc. or any other Subsidiary that is subject to regulation as an insurance company, in each case be a Material Subsidiary.

 

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.

 

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Non-U.S. Lender” means a Lender that is not a U.S. Person.

 

“Non-U.S. Pension Plan” means any plan, scheme, fund (including any superannuation fund) or other similar program established, sponsored or maintained outside the United States by the Parent or any one or more of its Subsidiaries primarily for the benefit of employees of the Parent or such Subsidiaries residing outside the United States, 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 or the Code.

“Non-U.S. Subsidiary” means any Subsidiary which is not a U.S. Subsidiary.

 

“NYFRB” means the Federal Reserve Bank of New York.

 

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

 

“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the Loan Parties to any of the Lenders, the Administrative Agent, any Issuing Bank or any indemnified party, individually or collectively, existing on the Restatement Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or to the Lenders or any of their Affiliates (or any Person that was a Lender or an Affiliate of a Lender at the time the applicable Banking Services Agreement or Guaranteed Swap Agreement was entered into, or, with respect to Guaranteed Swap Agreements or Banking Services entered into prior to the Restatement Effective Date, was a Lender as of the Restatement Effective Date or an Affiliate thereof) under any Guaranteed Swap Agreement or any Banking Services Agreement or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof; provided that in no event shall the Obligations of any Guarantor under the Guaranty create any guarantee by any Guarantor of any Excluded Swap Obligations with respect to such Guarantor.

 

“OFAC” has the meaning assigned to such term in Section 3.14.

 

“Operating Lease Expenditure” means, in respect of a Relevant Period, all payments made by the Group under operating leases under which a member of the Group is lessee. Operating Lease Expenditure shall not include any Rates or Service Charges.

 

“Original Quarter” has the meaning assigned to such term in Section 1.05(a).

 

“Other Taxes” means any present or future stamp, court, documentary, intangible, recording, filing or similar excise or property Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Excluded Taxes imposed with respect to an assignment (other than an assignment under Section 2.20(b)) and, for the avoidance of doubt, excluding any UK Tax.

“Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.

 

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

 

“Parent” means Signet Jewelers Limited, a company incorporated under the laws of Bermuda.

 

“Participant” has the meaning assigned to such term in Section 9.04.

 

“Participant Register” has the meaning assigned to such term in Section 9.04(c).

 

“Participating Member State” has the meaning assigned to such term in Schedule 2.02.

 

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“Permitted Acquisition” means any acquisition by the Company, any Material Subsidiary or any other Loan Party (including any investments by the Company, any Material Subsidiary or any other Loan Party in any Subsidiary for purposes of financing such acquisition) of all or substantially all of the outstanding Equity Interests (other than directors’ qualifying shares) in, or all or substantially all the assets of, or all or substantially all the assets constituting a division or line of business of, a Person if:

 

 

 

“Permitted Encumbrances” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“Permitted Securitization” means any financing transaction of the Receivables or any other receivables by a member of the Group which is intended to take effect as a financing by means of securitization or other type of structured or secured financing.

 

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

 

“Piercing Pagoda Disposition” means the Disposition of the business, inventory and/or other assets related to Piercing Pagoda.

 

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“PNC Bank” means PNC Bank, National Association.

 

“Pounds Sterling” means the lawful currency of the United Kingdom.

“Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

“Pro Forma Basis” means, with respect to any event, that the Company is in compliance on a pro forma basis with the applicable covenant, calculation or requirement herein recomputed as if the event with respect to which compliance on a Pro Forma Basis is being tested and related transactions occurring substantially contemporaneously therewith had occurred on the first day of the four fiscal quarter period most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 5.01.

 

“Protected Party” means any Credit Party that is or will be subject to any liability or required to make any payment for or on account of UK Tax, in relation to a sum received or receivable (or any sum deemed for the purposes of UK Tax to be received or receivable) under any Loan Document.

 

“Qualifying Lender” means:

 

 

 

(1)

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document; or

 

(2)

in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made,

 

and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

 

(1)

a company resident in the United Kingdom for United Kingdom tax purposes; or

 

(2)

a partnership each member of which is:

 

(x)

a company resident in the United Kingdom; or

 

(y)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning given by section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(3)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning given by section 19 of the CTA).

 

 

(ii) a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Loan Document.

 

“Rates” means, in respect of any Relevant Period, all payments made by a member of the Group in respect of local area charges or business rates levied by a Governmental Authority or other governmental body in respect of freehold or leasehold premises owned or acquired by a member of the Group.

 

 “Receivables” means receivables under credit card accounts for any member of the Group.

 

“Register” has the meaning set forth in Section 9.04.

 

“Regulation” means the Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings.

 

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

“Relevant Financial Year” has the meaning assigned to such term in Section 1.05(c).

 

“Relevant Period” means each period of four fiscal quarters ending on the last day of the Parent’s financial year and each period of four fiscal quarters ending on the last day of each fiscal quarter of the Parent’s financial year.

 

“Rents” means, in respect of a Relevant Period, all payments made by a member of the Group in respect of rents, license fees and other moneys payable in respect of freehold or leasehold premises in which a member of the Group has an interest as lessee or licensee (but shall not to the extent thereof include any such payments that are linked to the turnover of any member of the Group) less all such payments made to the Group as lessor or licensor of such premises during, or in respect of, such Relevant Period. Rents shall not include any Rates or Service Charges.

 

“Required Lenders” means, at any time, Lenders having Revolving Credit Exposure, Term Loans and unused Revolving Commitments representing more than 50% of the sum of the total Revolving Credit Exposure, outstanding Term Loans and unused Revolving Commitments at such time; provided that the Revolving Credit Exposure, outstanding Term Loans and unused Revolving Commitments of Defaulting Lenders shall not be included for purposes of determining “Required Lenders”.

 

“Restatement Effective Date” means the date on which each of the conditions precedent to the effectiveness of this Agreement contained in Section 4.01 have been either satisfied or waived, which date is July 14, 2016.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Parent or any Material Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Parent or any Material Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Parent or any Material Subsidiary.

 

“Revolving Borrower” means the Company, Signet Treasury or any Additional Borrower.

 

“Revolving Commitment” means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum amount of such Revolving Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.21 and (c) reduced or increased from time to time pursuant to assignments by or to such Revolving Lender pursuant to Section 9.04. The initial amount of each Revolving Lender’s Revolving Commitment is set forth on Schedule 2.01 under the heading “Revolving Commitment”, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Revolving Lender shall have assumed its Revolving Commitment, as applicable.

 

 “Revolving Credit Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.

 

“Revolving Facility” means the Revolving Commitments and the extensions of credit thereunder.

 

“Revolving Lender” means each Lender that has a Revolving Commitment or if the Revolving Commitments have terminated or expired, each Lender with Revolving Credit Exposure.

 

“Revolving Loan” means a Loan made pursuant to Section 2.01(a).

 

“Revolving Termination Date” means the date that is five years after the Restatement Effective Date, which date is July 14, 2021.

 

“S&P” means Standard & Poor’s Financial Services LLC.

 

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or the Canadian government (including the Special Economic Measures Act (SEMA)).

 

“Sale and Leaseback Transaction” means any sale or other transfer of any property or asset by any Person with the intent to lease such property or asset as lessee.

 

“SEC” means the United States Securities and Exchange Commission.

“Service Charges” means, in respect of a Relevant Period, any and all amounts which are payable by a member of the Group in respect of, or which arise as a result of, freehold, leasehold or commonhold premises in which a member of the Group has an interest as legal or beneficial owner or as lessee or licensee and which relate, or are referable, to or are in the nature of: (a) service charges (whether relating to maintenance, repairing or other matters in respect of real property or the provision of services in respect of real property) or common area charges; (b) to the extent not falling within paragraph (a) above, contributions to the payment of insurance premiums or the cost of insurance valuations or arise in the context of obtaining (or making an application to obtain) insurance; and (c) contributions to sinking funds, in each case relating to such premises and interests of the Group and any VAT or similar Taxes or UK Tax payable on such amounts.

 

“Signet Group Pension Scheme” means that certain pension scheme as governed by a Trust Deed dated 6 January 2009 by and among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and The Law Debenture Pension Trust Corporation plc, as trustees (as amended, amended and restated, or otherwise supplemented).

 

“Signet Treasury” means Signet Group Treasury Services Inc., a Delaware corporation.

 

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall, in the case of Dollar denominated Loans, include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.

 

“Sterling Jewelers” means Sterling Jewelers Inc., a Delaware corporation.

 

“Subordinated Indebtedness” means any Indebtedness of the Company or any Material Subsidiary the payment of which is subordinated to payment of the obligations under the Loan Documents.

 

“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held.

 

“Subsidiary” means any subsidiary of the Parent.

 

“Subsidiary Guarantor” means each Material Subsidiary that is party to the Guaranty. The Subsidiary Guarantors on the Restatement Effective Date are identified as such in Schedule 3.01 hereto.

“Succeeding Quarter” has the meaning assigned to such term in Section 1.05(a).

 

“Swap Agreement” means (a) any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions and (b) any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Parent or any of its Subsidiaries shall be a Swap Agreement.

 

“Swap Obligations” means any and all obligations of the Parent or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender at the time the applicable Swap Agreement was entered into, or, with respect to Swap Agreements entered into prior to the Restatement Effective Date, was a Lender as of the Restatement Effective Date or an Affiliate thereof) and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction.

 

“Swingline Borrower” means the Company, Signet Treasury, Sterling Jewelers or any Additional Borrower.

 

“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall be the sum of (a) its Applicable Revolving Percentage of the total Swingline Exposure at such time related to Swingline Loans other than any Swingline Loans made by such Lender in its capacity as a Swingline Lender and (b) if such Lender shall be a Swingline Lender, the principal amount of all Swingline Loans made by such Lender outstanding at such time (to the extent that the other Revolving Lenders shall not have funded their participations in such Swingline Loans); provided that in the case of Sections 2.01(a) and 2.05(a) when a Defaulting Lender shall exist, the Swingline Exposure of any Revolving Lender shall be adjusted to give effect to any reallocation effected pursuant to Section 2.24.

 

“Swingline Lender” means JPMorgan Chase Bank, N.A. and PNC Bank, each in its capacity as lender of Swingline Loans hereunder.

 

“Swingline Loan” means a Loan made pursuant to Section 2.05.

 

 “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.

 

“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

 

(A)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

 

(1)

a company so resident in the United Kingdom; or

 

(2)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning given by section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(C)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning given by section 19 of the CTA).

 

“Tax Credit” means a credit against, relief or remission for or repayment of any UK Tax.

 

“Tax Deduction” means a deduction or withholding for or on account of UK Tax from a payment under any Loan Document, other than a FATCA Deduction.

 

“Tax Payment” means either an increased payment made by a Borrower to a Lender under Section 2.18(d) or a payment under Section 2.18(l).

 

“Taxes” means any present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, but excluding UK Tax.

 

“Term Lender” means each Lender that has a Term Loan Commitment or holds a Term Loan.

 

“Term Loan” has the meaning assigned to such term in Section 2.01(b).

 

“Term Loan Borrower” means the Company.

 

“Term Loan Commitment” means, with respect to each Term Lender, the commitment of such Term Lender to make a Term Loan in a principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the heading “Term Loan Commitment”. The original aggregate amount of the Term Loan Commitments is $357,500,000.

 

“Term Loan Facility” means the Term Loan Commitments and the Term Loans made thereunder.

 

“Term Maturity Date” means the date that is five years after the Restatement Effective Date, which date is July 14, 2021.

 

“Transactions” means the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the issuance of Letters of Credit hereunder and the payment of fees and expenses incurred in connection with the foregoing.

 

“Treaty Lender” means a Lender which:

 

 

 

“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

 

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

 

“U.S.” and “United States” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.

 

“U.S. Borrower” means Signet Treasury, Sterling Jewelers and any other Borrower whose jurisdiction of organization is a state of the United States or the District of Columbia.

 

“U.S. Group Company” means any member of the Group whose jurisdiction of organization is a state of the United States or the District of Columbia.

 

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

“U.S. Subsidiary” means any Subsidiary organized under the laws of a jurisdiction located in the United States or the District of Columbia.

 

“U.S. Tax Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(D)(2).

 

“UK Group Company” means any member of the Group organized under the laws of England and Wales.

 

“UK Insolvency Event” means:

 

 

 

 

 

 

 

 

or any analogous procedure or step is taken in any jurisdiction; and

 

 

“UK Non-Bank Lender” means, where a Lender becomes a party to this Agreement after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Assignment and Assumption which it executes on becoming a party to this Agreement, Increasing Lender supplement, Augmenting Lender supplement or as otherwise provided to the relevant Borrower or Administrative Agent in writing within fifteen days of the relevant Treaty Lender becoming a party to this Agreement.

 

“UK Relevant Entity” means any UK Group Company or any Loan Party capable of becoming subject of an order for winding-up or administration under the Insolvency ▇▇▇ ▇▇▇▇ of the United Kingdom.

 

“UK Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) imposed by the government of the United Kingdom or any political subdivision thereof and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government of the United Kingdom.

 

“VAT” means value added tax as provided for in the United Kingdom Value Added Tax ▇▇▇ ▇▇▇▇ and any other tax of a similar nature.

 

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

“Withholding Agent” means any Loan Party and the Administrative Agent.

 

“Write-Down and Conversion Powers” means with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

 

 

 

 

 

 

 

 

ARTICLE II

The Credits

 

 

 

 

 

 

 

 

 

If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing denominated in Dollars to the Company, the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing, then the relevant Revolving Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Revolving Lender of the details thereof and of the amount of such Revolving Lender’s Loan to be made as part of the requested Borrowing.

 

 

 

If no election as to the Type of Term Loan Borrowing is specified, then, the requested Term Loan Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the Term Loan Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Term Lender of the details thereof and of the amount of such Term Lender’s Term Loan to be made as part of the requested Borrowing.

 

 

 

 

Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clauses (a), (b) and (c) is herein described as a “Computation Date” with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(i)

the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means (including by means of an Interpolated Rate or a CDOR Interpolated Rate, as applicable) do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or

(ii)

the Administrative Agent is advised by the Majority Facility Lenders in respect of the relevant Facility that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders by telephone or Electronic Communication as promptly as practicable thereafter and, until the Administrative Agent notifies the applicable Borrower and the relevant Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing under the relevant Facility to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective, and (ii) with respect to any Borrowing under the Revolving Facility (x) any Eurocurrency Borrowing denominated in a Foreign Currency that is requested to be continued shall be repaid on the last day of the then current Interest Period applicable thereto, (y) any Eurocurrency Borrowing by a Borrower that is not a U.S. Borrower that is requested to be continued shall be repaid on the last day of the then current Interest Period applicable thereto and (z) if any Borrowing Request by any Borrower that is not a U.S. Borrower requests a Eurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing (and if any Borrowing Request requests a Eurocurrency Revolving Borrowing by a Borrower that is not a U.S. Borrower or denominated in a Foreign Currency, such Borrowing Request shall be ineffective).

 

 

 

and the result of any of the foregoing shall be to increase the cost to such Credit Party of making or maintaining any Loan or of maintaining its obligation to make any such Loan (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Credit Party of participating in, issuing or maintaining any Letter of Credit (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or receivable by such Credit Party hereunder, whether of principal, interest or otherwise (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the applicable Borrower will pay to such Credit Party such additional amount or amounts as will compensate such Credit Party for such additional costs incurred or reduction suffered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(i)

the payment could have been made to the relevant Lender without a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or any published practice or concession of any relevant taxing authority; or

 

(ii)	the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(b) of the definition of Qualifying Lender and:

 

(1)	an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to that payment and that Lender has received from the Borrower making the payment a certified copy of that Direction; and

(2)	the payment could have been made to the Lender without any Tax Deduction in the absence of that Direction; or

(iii)

the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(b) of the definition of Qualifying Lender and:

(1)	the relevant Lender has not given a Tax Confirmation to the Borrower; and

(2)

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Borrower, on the basis that the Tax Confirmation would have enabled the Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

(iv)	the relevant Lender is a Treaty Lender and the Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under clauses (h) and (i) below.

 

 

 

 

(ii)

 

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorization to make that payment without a Tax Deduction.

 

 

 

(i)	under the law of the jurisdiction in which that Protected Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Protected Party is treated as resident for tax purposes; or

(ii)	under the law of the jurisdiction in which that Protected Party’s facility office is located in respect of amounts received or receivable in that jurisdiction,

if that UK Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Protected Party.

 

 

(i)	is compensated for by an increased payment under clause (d) above;

(ii)	would have been compensated for by an increased payment under clause (d) above but was not so compensated solely because one of the exclusions in clause (e) applied; or

(iii)

relates to a FATCA Deduction or any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy).

 

 

 

(i)	a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part or to that Tax Payment; and

(ii)	that Lender has obtained, utilized and retained all or part of that Tax Credit,

the relevant Lender shall pay an amount to the Borrower which that Lender determines (acting in good faith) will leave it (after that payment) in the same after-tax position as it would have been in had the Tax Payment not been made by the Borrower.

 

 

 

If a new Lender, Increasing Lender or Augmenting Lender fails to indicate its status in accordance with this paragraph (s) then such new Lender shall be treated for the purposes of this Agreement (including by each Borrower) as if it is not a Qualifying Lender until such time as it notifies the Administrative Agent which category applies (and the Administrative Agent, upon receipt of such notification, shall inform the Borrowers). For the avoidance of doubt, an Assignment and Assumption or other documentation pursuant to which a Lender becomes party to this Agreement shall not be invalidated by any failure of a Lender to comply with this paragraph (s).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the Restatement Effective Date and for so long as such event shall continue or (ii) any Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to such Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.

 

In the event that the Administrative Agent, the Company, each Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage.

 

ARTICLE III

Representations and Warranties

 

Each of the Parent and the Company represents and warrants to the Lenders that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(b)  Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent or employee of the Company or any Subsidiary, has taken any action, directly or indirectly, that would result in a material violation by any such Person of the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”), including, without limitation, making any offer, payment, promise to pay or authorization or approval of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in each case in contravention of the FCPA or any applicable anti-corruption laws or regulations of any Governmental Authority with jurisdiction over the Company or any of its Subsidiaries. No Borrower will directly or, to its knowledge, indirectly, use the proceeds of the Loans or Letters of Credit in contravention of the FCPA or any applicable anti-corruption laws or regulations of any Governmental Authority with jurisdiction over the Company or any of its Subsidiaries.

The representations and warranties set forth in Section 3.14(b) above made by or on behalf of any Non-U.S. Subsidiary are subject to and limited by any foreign law applicable to such Non-U.S. Subsidiary; it being understood and agreed that to the extent that any Non-U.S. Subsidiary is unable to make any representation or warranty set forth in Section 3.14(b) as a result of the application of this sentence, such Non-U.S. Subsidiary shall be deemed to have represented and warranted that it is in compliance, in all material respects, with any equivalent local laws relating to anti-corruption or anti-money laundering that is applicable to such Non-U.S. Subsidiary in its relevant local jurisdiction of organization.

ARTICLE IV

Conditions

 

 

 

 

 

 

 

Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.

 

Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated or been cash collateralized in accordance with Section 2.06(j) of this Agreement and all LC Disbursements shall have been fully reimbursed, each of the Parent and the Company covenants and agrees with the Lenders that:

 

 

 

Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01, and solely with respect to the following clause (iii) below, clause (c) of this Section 5.01, may be delivered electronically and if so delivered, shall be deemed to have been delivered on (i) the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System, (ii) the Company’s website (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), or (iii) such other internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or a website sponsored by the Administrative Agent); provided that the Company shall notify (which may be by Electronic Communication) the Administrative Agent of the filing or posting of any such documents and, at the request of the Administrative Agent, provide the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by clause (c) of this Section 5.01 to the Administrative Agent.

 

 

 

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Company setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE VI

Negative Covenants

 

Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated or been cash collateralized in accordance with Section 2.06(j) and all LC Disbursements shall have been reimbursed, the each of the Parent and the Company covenants and agrees with the Lenders that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For purposes of determining compliance with this Section 6.04, the amount of any Investment outstanding under clauses (e), (g) and (i) shall be the original cost of such Investment, reduced (at the Parent or the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment (including, in the case of clause (e), the value of any inventory or services received by any Material Subsidiary or any other Loan Party from the applicable joint venture).

 

 

 

 

 

 

ARTICLE VII

Events of Default

 

If any of the following events (“Events of Default”) shall occur:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

then, and in every such event (other than an event with respect to the Company described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity.

 

ARTICLE VIII

The Administrative Agent

 

Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.

 

The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Parent or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

 

The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (such consent (i) not to be unreasonably withheld or delayed and (ii) not to be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

 

Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.  Further, the Credit Parties, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their affiliates on the part of the Credit Parties, and the Credit Parties and the Loan Parties may have conflicting economic interests.

 

None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.

 

The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

 

ARTICLE IX

Miscellaneous

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:

 

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

 

ARTICLE X

Cross-Guarantee

 

In order to induce the Lenders to extend credit to the Borrowers hereunder, but subject to the last sentence of this Article X, the Parent and each Borrower (collectively, the “Guaranty Parties” and each individually, a “Guaranty Party”) hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Guaranty Parties (the “Guaranteed Obligations”). Each Guaranty Party further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation. Each Guaranty Party irrevocably and unconditionally jointly and severally agrees that if any of the Guaranteed Obligations is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Administrative Agent, the Issuing Banks and the Lenders immediately on demand against any cost, loss or liability they incur as a result of the Borrowers not paying any amount which would, but for such unenforceability, invalidity, or illegality, have been payable by it under this Article X on the date when it would have been due (but so that the amount payable by such Guaranty Party under this indemnity will not exceed the amount it would have had to pay under this Article X if the amount claimed had been recoverable on the basis of a guaranty).

 

Each Guaranty Party waives presentment to, demand of payment from and protest to any Guaranty Party of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Guaranty Party hereunder shall not be affected by (a) the failure of the Administrative Agent, any Issuing Bank or any Lender to assert any claim or demand or to enforce any right or remedy against any Guaranty Party under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Guaranty Party or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto, or any other invalidity or unenforceability relating to or against any Guaranty Party or any other guarantor of any of the Obligations, for any reason related to this Agreement, any Swap Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Guaranty Party or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Guaranty Party or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Guaranty Party to subrogation.

Each Guaranty Party further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, any Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the Administrative Agent, any Issuing Bank or any Lender in favor of any Guaranty Party or any other Person.

 

The obligations of each Guaranty Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.

 

Each Guaranty Party further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent, any Issuing Bank or any Lender upon the bankruptcy or reorganization of any Guaranty Party or otherwise.

 

In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, any Issuing Bank or any Lender may have at law or in equity against any Guaranty Party by virtue hereof, upon the failure of any other Guaranty Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guaranty Party hereby promises to and will, upon receipt of written demand by the Administrative Agent, any Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent, any Issuing Bank or any Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon. Each Guaranty Party further agrees that if payment in respect of any Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, any Issuing Bank or any Lender, disadvantageous to the Administrative Agent, any Issuing Bank or any Lender in any material respect, then, at the election of the Administrative Agent, such Guaranty Party shall make payment of such Obligation in Dollars (based upon the applicable Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and independent obligation, shall indemnify the Administrative Agent, any Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.

 

Upon payment by any Guaranty Party of any sums as provided above, all rights of such Guaranty Party against any Guaranty Party arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations owed by such Guaranty Party to the Administrative Agent, the Issuing Bank and the Lenders.

 

Nothing shall discharge or satisfy the liability of any Guaranty Party hereunder except the full performance and payment of the Obligations.

 

 

 

[Signature Pages Follow]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

	SIGNET GROUP LIMITED,
	as the Company and a Borrower
	By:	/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
	Name:	▇▇▇▇ ▇▇▇▇▇▇▇
	Title:	Director

 

	SIGNET GROUP TREASURY SERVICES INC.,
	as a Borrower
	By:	/s/ ▇▇▇▇ ▇. Light
	Name:	▇▇▇▇ ▇. Light
	Title:	President

 

	STERLING JEWELERS INC.,
	as a Borrowe
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
	Title:	Chief Financial Officer

 

	SIGNET JEWELERS LIMITED,
	as Parent
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
	Title:	Chief Financial Officer