FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
EXHIBIT 10.1
FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of October [__], 2022, by and among MATRIX SERVICE COMPANY, a Delaware corporation (“Matrix”), MATRIX SERVICE INC., an Oklahoma corporation (“Matrix Service”), MATRIX PDM ENGINEERING, INC., a Delaware corporation (“Matrix PDM Engineering”), MATRIX NORTH AMERICAN CONSTRUCTION, INC., an Oklahoma corporation (“Matrix Oklahoma”), together with each other Person from time to time a “US Borrower” thereunder (together with Matrix, Matrix Service, Matrix PDM Engineering and Matrix Oklahoma, each individually, a “US Borrower” and collectively, “US Borrowers), MATRIX SERVICE CANADA ULC, an Alberta unlimited liability corporation (“Matrix ULC”), MATRIX SME CANADA ULC, a Nova Scotia unlimited company (“Matrix SME Canada”), MATRIX NORTH AMERICAN CONSTRUCTION LTD., an Ontario corporation (“Matrix North America”), together with each other Person from time to time a “Canadian Borrower” thereunder (together with Matrix ULC, Matrix SME Canada and Matrix North America, each a “Canadian Borrower” and collectively, “Canadian Borrowers” and together with US Borrowers, each individually, as a “Borrower” and collectively, “Borrowers”), MATRIX SERVICE INTERNATIONAL, LLC, a Delaware limited liability company (“Matrix Service International”), MATRIX INTERNATIONAL ENGINEERING, LLP, a Delaware limited liability partnership (“Matrix International Engineering”), MATRIX APPLIED TECHNOLOGIES, INC., a Delaware corporation (“Matrix Applied”), MSI FEDERAL CONTRACTING, LLC, a Delaware limited liability company (“MSI”), MATRIX PDM, LLC, an Oklahoma limited liability company (“Matrix PDM”), MATRIX PDM ENGINEERING LTD., a Nova Scotia company limited by shares (“Matrix PDM Canada”), MATRIX NORTH AMERICAN CONSTRUCTION, LLC, a Delaware limited liability company (“Matrix Delaware”), MATRIX SME CANADA, INC., a Delaware corporation (“Matrix SME Delaware”), and together with each other Person from time to time a “Guarantor” thereunder (together with Matrix Service International, Matrix International Engineering, Matrix Applied, MSI, Matrix PDM, Matrix PDM Canada, Matrix Delaware and Matrix SME Delaware, each individually, a “Guarantor” and collectively, “Guarantors”), the Lenders party hereto, and BANK OF MONTREAL, as administrative agent for the Lenders (in such capacity, “Agent”).
RECITALS:
WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of September 9, 2021, by and among the Borrowers, the other Loan Parties party thereto, the lenders from time to time party thereto (the “Lenders”), and Agent (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used and not otherwise defined herein being used herein as therein defined);
WHEREAS, the Loan Parties failed to deliver to the Agent and the Lenders, the audited financial statements of the Company and its Subsidiaries for the fiscal year ended June 30, 2022 (the “2022 Audited Financials”) within ninety (90) days of the end of such fiscal year of the Borrowers or, if earlier, fifteen (15) days of the date required to be filed with the SEC (which requirement is more specifically set forth in Section 7.01(a) of the Credit Agreement), constituting a breach of Section 7.01 of the Credit Agreement and resulting in an Event of Default pursuant to Section 9.01(b) of the Credit Agreement, (the foregoing, the “Existing Event of Default”); and
WHEREAS, the Borrowers have requested and Agent and the Lenders have agreed, subject to the terms and conditions of this Amendment, to waive the Existing Event of Default and to make certain amendments to the Credit Agreement as provided for herein.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
SECTION 1. Amendments to the Credit Agreement.
(a) Effective as of the First Amendment Effective Date, the Credit Agreement is hereby amended (i) to delete the stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) and (ii) to add the double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked copy of the
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Credit Agreement, along with those certain exhibits, schedules and appendices to the Credit Agreement, attached hereto as Exhibit A hereto and made a part hereof for all purposes.
(b) Effective as of the First Amendment Effective Date, Schedule 2.01 to the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit B.
SECTION 2. Limited Waiver.
(a) Subject to the following sentence, Agent and the Lenders hereby waive the Existing Event of Default. The effectiveness of the foregoing waiver shall be subject to the following condition subsequent, such that if such condition subsequent shall not be timely satisfied, then without any further action, the Existing Event of Default shall be deemed to be not waived and to be in effect at all times from and after the first occurrence of the Existing Event of Default (and as a result, Agent and Lenders may exercise all rights and remedies available to it under the Credit Agreement, including the retroactive application of the Default Rate): delivery by the Loan Parties to the Agent and the Lenders of the final 2022 Audited Financial Statements on or before October 14, 2022. To the extent that the Default Rate has been accrued in connection with the Existing Event of Default, such accrued interest at the Default Rate shall be waived; provided that, if the conditions subsequent set forth in the immediately preceding sentence is not satisfied, Default Interest shall be deemed to be not waived and shall accrue from and after the first occurrence of the Existing Event of Default.
(b) Except as expressly set forth in Section 2(a), nothing in this Amendment shall directly or indirectly whatsoever either: (i) be construed as a waiver of any covenant or provision of the Credit Agreement, any other Loan Document, or any other contract or instrument by or among any Loan Party and the Agent and/or the Secured Parties, (ii) impair, prejudice or otherwise adversely affect any right of the Agent or the Secured Parties at any time to exercise any right, privilege or remedy in connection with the Credit Agreement, any other Loan Document or any other contract or instrument, or (iii) constitute any course of dealing or other basis for altering any obligation of the Loan Parties or any right, privilege or remedy of the Agent or the Lenders under the Credit Agreement, any other Loan Document or any other contract or instrument by or among any Loan Party and the Agent and/or the Secured Parties or constitute any consent by the Agent or the Lenders to any prior, existing or future violations of the Credit Agreement or any other Loan Document.
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent in a manner satisfactory to the Agent (the first date upon which all such conditions have been satisfied being herein called the “First Amendment Effective Date”):
(a) The Agent shall have received this Amendment, duly executed by the Loan Parties, satisfactory in form and substance to the Agent.
(b) The representations and warranties contained in this Amendment shall be true and correct in all respects.
The Loan Parties shall be deemed to represent and warrant to the Agent and the Lenders that the foregoing conditions have been satisfied upon the release of its signatures to this Amendment.
SECTION 4. Ratifications and Further Assurances.
(a) The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and the other Loan Documents, and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect. The Loan Parties, the Agent and the Lenders agree that the Credit Agreement and the other Loan Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms.
(b) Each Loan Party confirms that all of its obligations under the Loan Documents are in full force and effect and are performable in accordance with their respective terms without setoff, defense, counter-claim or claims in recoupment. Each Loan Party further confirms that the term “Obligations”, as used in the Credit Agreement, shall include all Obligations of the Loan Parties under the Credit Agreement, any promissory notes issued under the Credit Agreement and each other Loan Document.
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SECTION 5. Representations and Warranties. Each Loan Party hereby represents and warrants to the Agent and the Lenders that (a) the execution, delivery and performance of this Amendment and any and all other Loan Documents executed and/or delivered in connection herewith by such Loan Party have been authorized by all requisite organizational action on the part of such Loan Party and will not violate the organizational or governing documents of such Loan Party; (b) before and after giving effect to this Amendment, the representations and warranties contained in Article VI of the Credit Agreement and in the other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or in all respects if qualified by materiality) on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or in all respects if qualified by materiality) as of such earlier date, and for the purposes of this Amendment, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement; (c) after giving effect to this Amendment, no Default or Event of Default under the Credit Agreement has occurred and is continuing; (d) such Loan Party is in compliance with all covenants and agreements contained in the Credit Agreement and the other Loan Documents, as applicable, as amended hereby; and (e) such Loan Party has not amended its organizational or governing documents since the date of execution of the Credit Agreement other than as has been previously disclosed and delivered to the Agent.
SECTION 6. Survival of Representations and Warranties. All representations and warranties made in the Credit Agreement or any other Loan Document, including, without limitation, any document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by the Agent or any Lender or any closing shall affect the representations and warranties or the right of the Agent and the Lenders to rely upon them.
SECTION 7. Reference to Credit Agreement. Each of the Credit Agreement and the other Loan Documents, and any and all other Loan Documents, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby amended so that any reference in the Credit Agreement and such other Loan Documents to the Credit Agreement shall mean a reference to the Credit Agreement, as amended hereby, and any reference in the Credit Agreement and such other Loan Documents to any other Loan Document amended by the provisions of this Amendment shall mean a reference to such other Loan Documents, as amended hereby.
SECTION 8. Expenses. As provided in the Credit Agreement, the Loan Parties agree to pay on demand all reasonable costs and out-of-pocket expenses incurred by the Agent and the Lenders in connection with the preparation, negotiation, and execution of this Amendment and the other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the reasonable fees and expenses of the Agent’s and the Lenders’ respective legal counsel, and all reasonable costs and out-of-pocket expenses incurred by the Agent and the Lenders in connection with the enforcement or preservation of any rights under the Credit Agreement, as modified hereby, or any other Loan Documents, including, without, limitation, the reasonable fees and expenses of the Agent’s and the Lenders’ respective legal counsel and consultants retained by the Agent and the Lenders or retained by the Agent’s and the Lenders’ legal counsel.
SECTION 9. Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. Furthermore, in lieu of such invalid or unenforceable provision there shall be added as a part of this Amendment a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
SECTION 10. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the Agent, the Lenders, and the Loan Parties and their respective successors and assigns, except that no Loan Party may assign or transfer any of its rights or obligations hereunder without the prior written consent of the Agent.
SECTION 11. Counterparts. This Amendment may be executed in one or more counterparts (including via electronic transmission), each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument.
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SECTION 12. Effect of Waiver. No consent or waiver, express or implied, by the Agent and the Lenders to or for any breach of or deviation from any covenant or condition by any Loan Party shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty.
SECTION 13. Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
SECTION 14. Applicable Law. This Amendment and all other Loan Documents executed pursuant hereto shall be deemed to have been made and to be performable in and shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 15. Final Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE LOAN PARTIES AND THE AGENT.
SECTION 16. Release. BORROWERS AND GUARANTORS HEREBY ACKNOWLEDGE THAT THEY HAVE NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS‑COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE “OBLIGATIONS” OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT OR ANY SECURED PARTY. BORROWERS AND GUARANTORS HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE AGENT AND EACH SECURED PARTY AND THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES (INCLUDING ALL STRICT LIABILITIES) WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AGREEMENT IS EXECUTED, WHICH BORROWERS AND GUARANTORS MAY NOW OR HEREAFTER HAVE AGAINST AGENT, EACH SECURED PARTY OR THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY “LOANS”, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed on the date first written above, to be effective as the respective date set forth above.
AGENT
BANK OF MONTREAL
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
LENDERS
BANK OF MONTREAL
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
Signature Page to
First Amendment and Waiver to Credit Agreement
BANK OF MONTREAL
By: /s/ Xxxxx Xxxxxxx-Xxxxxxxxx
Name: Xxxxx Xxxxxxx-Xxxxxxxxx
Title: Managing Director
Signature Page to
First Amendment and Waiver to Credit Agreement
BORROWERS:
MATRIX SERVICE COMPANY,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO & Treasurer
MATRIX SERVICE INC.,
an Oklahoma corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO, Treasurer, Secretary
MATRIX PDM ENGINEERING, INC.,
an Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO, Secretary
MATRIX NORTH AMERICAN CONSTRUCTION, INC.,
an Oklahoma corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO & Treasurer
Signature Page to
First Amendment and Waiver to Credit Agreement
MATRIX SERVICE CANADA ULC,
an Alberta unlimited liability corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: CFO & Treasurer
MATRIX SME CANADA ULC,
a Nova Scotia unlimited company
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP & Treasurer
MATRIX NORTH AMERICAN CONSTRUCTION LTD.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP & Treasurer
Signature Page to
First Amendment and Waiver to Credit Agreement
GUARANTORS:
MATRIX SERVICE INTERNATIONAL, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, Secretary
Matrix International Engineering, LLP,
a Delaware limited liability partnership
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO, Treasurer
MATRIX APPLIED TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
MSI FEDERAL CONTRACTING, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
MATRIX PDM, LLC,
an Oklahoma limited liability company
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
Signature Page to
First Amendment and Waiver to Credit Agreement
MATRIX PDM ENGINEERING LTD.,
a Nova Scotia company limited by shares
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP, CFO, Secretary
MATRIX NORTH AMERICAN CONSTRUCTION, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP & Treasurer
MATRIX SME CANADA, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer, Secretary
Signature Page to
First Amendment and Waiver to Credit Agreement
Execution VersionExhibit A
CREDIT AGREEMENT
Dated as of September 9, 2021
among
MATRIX SERVICE COMPANY,
as a Borrower
and certain Subsidiaries thereof,
each as a Loan Party hereto,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
BANK OF MONTREAL,
and
BMO CAPITAL MARKETS,
as Arranger and Book Runner
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 5859
1.03 Accounting Terms. 5960
1.04 Uniform Commercial Code 6061
1.05 Rounding 6061
1.06 Times of Day 6061
1.07 Letter of Credit Amounts 6061
1.08 Exchange Rates; and Currency Equivalents. 6061
1.09 Québec References 6162
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loan Commitments. 6263
2.02 Borrowings, Conversions and Continuations of Loans. 6466
2.03 Letters of Credit. 6667
2.04 Swing Line Loans. 7374
2.05 Repayment of Loans. 7576
2.06 Prepayments. 7577
2.07 Termination or Reduction of Commitments. 7879
2.08 Interest. 7880
2.09 Fees. 8081
2.10 Computation of Interest and Fees 8182
2.11 Evidence of Debt. 8182
2.12 Payments Generally; the Administrative Agent’s Clawback. 8183
2.13 Sharing of Payments by Lenders 8385
2.14 Settlement Among Lenders. 8486
2.15 Nature and Extent of Each Borrower’s Liability. 8586
2.16 Cash Collateral. 8889
2.17 Defaulting Lenders. 8990
2.18 Uncommitted Increase in Revolving Credit Commitments. 9192
2.19 Designation of Subsidiaries as Unrestricted Subsidiaries 9294
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. 9395
3.02 Illegality 9798
3.03 Inability to Determine Rates; Effect of Benchmark Transition Event 97 or Canadian Benchmark Transition Event 99
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans. 99101
3.05 Compensation for Losses 101103
3.06 Mitigation Obligations; Replacement of Lenders. 101103
3.07 Survival 102104
ARTICLE IV
SECURITY AND ADMINISTRATION OF COLLATERAL
SECURITY AND ADMINISTRATION OF COLLATERAL
4.01 Security 102104
4.02 Collateral Administration. 102104
4.03 After Acquired Property; Further Assurances. 103105
4.04 Cash Management. 104106
4.05 Information Regarding Collateral 106108
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension 106109
5.02 Conditions to all Credit Extensions 109111
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
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TABLE OF CONTENTS
(continued)
Page
6.01 Existence, Qualification and Power 109112
6.02 Authorization; No Contravention 110112
6.03 Governmental Authorization; Other Consents 110112
6.04 Binding Effect 110113
6.05 Financial Statements; No Material Adverse Effect. 110113
6.06 Litigation 111113
6.07 No Default 111114
6.08 Ownership of Property; Liens. 111114
6.09 Environmental Compliance. 111114
6.10 Insurance 112115
6.11 Taxes 112115
6.12 ERISA Compliance. 113115
6.13 Subsidiaries and Equity Interests 115117
6.14 Margin Regulations; Investment Company Act 115118
6.15 Disclosure 115118
6.16 Compliance with Laws 115118
6.17 Intellectual Property; Licenses, Etc 115118
6.18 Labor Matters 116118
6.19 Deposit Accounts and Securities Accounts. 116119
6.20 Accounts 116119
6.21 Sanctions; Anti-Money Laundering Laws and Anti-Corruption Laws 117120
6.22 Brokers 118120
6.23 Customer and Trade Relations 118120
6.24 Material Contracts 118121
6.25 Casualty 118121
6.26 Senior Indebtedness 118121
6.27 Post-Retirement Benefits 118121
6.28 Payment and Performance Bonds 118121
ARTICLE VII
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
7.01 Financial Statements 119121
7.02 Borrowing Base Certificate; Other Information 120122
7.03 Notices 122124
7.04 Payment of Obligations 123126
7.05 Preservation of Existence, Etc 123126
7.06 Maintenance of Properties 123126
7.07 Maintenance of Insurance; Condemnation Proceeds. 124126
7.08 Compliance with Laws 125128
7.09 Books and Records 125128
7.10 Inspection Rights and Appraisals; Meetings with the Administrative Agent. 125128
7.11 Use of Proceeds 126129
7.12 New Subsidiaries 126129
7.13 Compliance with XXXXX and PBA 127130
7.14 Further Assurances 128131
7.15 Licenses 128131
7.16 Environmental Laws 128131
7.17 Leases, Mortgages and Third-Party Agreements. 128131
7.18 Material Contracts 129132
7.19 Treasury Management Services 129132
7.20 No Cash Hoarding 129132
ARTICLE VIII
NEGATIVE COVENANTS
NEGATIVE COVENANTS
8.01 Indebtedness 130133
8.02 Liens 131134
8.03 Investments 133136
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TABLE OF CONTENTS
(continued)
Page
8.04 Fundamental Changes 134137
8.05 Dispositions 134138
8.06 Restricted Payments 135139
8.07 Change in Nature of Business 136139
8.08 Transactions with Affiliates 136139
8.09 Burdensome Agreements 136140
8.10 Use of Proceeds 136140
8.11 Prepayment of Indebtedness; Amendment to Material Contracts. 136140
8.12 Financial Covenants. 137141
8.13 Creation of New Subsidiaries 137141
8.14 Securities of Subsidiaries 138141
8.15 Sale and Leaseback 138141
8.16 Organizational Documents; Fiscal Year 138141
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default 138142
9.02 Remedies upon Event of Default 141144
9.03 Application of Funds. 141145
ARTICLE X
ADMINISTRATIVE AGENT
ADMINISTRATIVE AGENT
10.01 Appointment and Authority 143147
10.02 Rights as a Lender 143147
10.03 Exculpatory Provisions 143147
10.04 Reliance by the Administrative Agent 144148
10.05 Delegation of Duties 145148
10.06 Resignation of the Administrative Agent 145149
10.07 Non-Reliance on the Administrative Agent and Other Lenders 146149
10.08 No Other Duties, Etc 146150
10.09 The Administrative Agent May File Proofs of Claim; Credit Bidding 146150
10.10 Collateral Matters 147151
10.11 Other Collateral Matters. 148151
10.12 Credit Product Arrangement Provisions. 148152
10.13 ERISA Related Provisions. 149153
10.14 Recovery of Erroneous Payments 151154
ARTICLE XI
MISCELLANEOUS
MISCELLANEOUS
11.01 Amendments, Etc. 151155
11.02 Notices; Effectiveness; Electronic Communication. 154158
11.03 No Waiver; Cumulative Remedies 156160
11.04 Expenses; Indemnity; Damage Waiver. 156160
11.05 Marshalling; Payments Set Aside 158162
11.06 Successors and Assigns. 159162
11.07 Treatment of Certain Information; Confidentiality 163166
11.08 Right of Setoff 164167
11.09 Interest Rate Limitation 164168
11.10 Counterparts; Integration; Effectiveness 164168
11.11 Survival 165168
11.12 Severability 165169
11.13 Replacement of Lenders 165169
11.14 Governing Law; Jurisdiction; Etc. 166170
11.15 Waiver of Jury Trial 167171
11.16 Electronic Execution of Assignments and Certain Other Documents 167171
11.17 USA PATRIOT Act Notice 168171
11.18 No Advisory or Fiduciary Responsibility 168171
11.19 Attachments 168172
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TABLE OF CONTENTS
(continued)
Page
11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 168172
11.21 Acknowledgement Regarding Any Supported QFCs 169172
11.22 Judgment Currency 170173
ARTICLE XII
CONTINUING GUARANTY
CONTINUING GUARANTY
12.01 Guaranty 170174
12.02 Rights of Lenders 171174
12.03 Certain Waivers 171174
12.04 Obligations Independent 171175
12.05 Subrogation 171175
12.06 Termination; Reinstatement 171175
12.07 Subordination 172175
12.08 Stay of Acceleration 172176
12.09 Condition of Borrowers 172176
12.10 Keepwell 172176
12.11 Limitation of Guaranty 172176
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| SCHEDULES | |||||
| 1.03 | Restricted and Unrestricted Subsidiaries | ||||
| 2.01 | Revolving Credit Commitments and Applicable Percentages | ||||
| 4.05 | Information Regarding Collateral | ||||
| 6.06 | Litigation | ||||
| 6.08 | Owned and Ground Lease Real Property | ||||
| 6.09 | Environmental Matters | ||||
| 6.10 | Insurance | ||||
| 6.12 | Pension Plans | ||||
| 6.13 | Subsidiaries and Equity Interests | ||||
| 6.18 | Labor Matters | ||||
| 6.19 | Deposit Accounts, Securities Accounts and Commodity Accounts | ||||
| 6.24 | Material Contracts | ||||
| 6.28 | Bonds | ||||
| 7.21 | Post-Closing | ||||
| 8.01 | Existing Indebtedness | ||||
| 8.02 | Existing Liens | ||||
| 8.03 | Existing Investments | ||||
| 11.02 | Addresses for Notices | ||||
| EXHIBITS | |||||
Form of | |||||
| A | Revolving Credit Loan Note | ||||
| B | Compliance Certificate | ||||
| C-1 | Security Agreement | ||||
| C-2 | Canadian Security Agreement | ||||
| D | Borrowing Base Certificate | ||||
| E | Assignment and Assumption Agreement | ||||
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of September 9, 2021, among MATRIX SERVICE COMPANY, a Delaware corporation (the “Matrix”), MATRIX SERVICE INC., an Oklahoma corporation (“Matrix Service”), MATRIX PDM ENGINEERING, INC., a Delaware corporation (“Matrix PDM Engineering”), MATRIX NORTH AMERICAN CONSTRUCTION, INC., an Oklahoma corporation (“Matrix Oklahoma”), together with each other Person from time to time a “US Borrower” hereunder (together with Matrix, Matrix Service, Matrix PDM Engineering and Matrix Oklahoma, may each be referred to herein individually, as a “US Borrower” and collectively, as “US Borrowers), MATRIX SERVICE CANADA ULC, an Alberta unlimited liability corporation (“Matrix ULC”), MATRIX SME CANADA ULC, a Nova Scotia unlimited company (“Matrix SME Canada”), MATRIX NORTH AMERICAN CONSTRUCTION LTD., an Ontario corporation (“Matrix North America”), together with each other Person from time to time a “Canadian Borrower” hereunder (together with Matrix ULC, Matrix SME Canada and Matrix North America, may each be referred to herein individually, as a “Canadian Borrower” and collectively, as “Canadian Borrowers” and together with US Borrowers, may each be referred to herein individually, as a “Borrower” and collectively, as “Borrowers”), MATRIX SERVICE INTERNATIONAL, LLC, a Delaware limited liability company (“Matrix Service International”), MATRIX INTERNATIONAL ENGINEERING, LLP, a Delaware limited liability partnership (“Matrix International Engineering”), MATRIX APPLIED TECHNOLOGIES, INC., a Delaware corporation (“Matrix Applied”), MSI FEDERAL CONTRACTING, LLC, a Delaware limited liability company (“MSI”), MATRIX PDM, LLC, an Oklahoma limited liability company (“Matrix PDM”), MATRIX PDM ENGINEERING LTD., a Nova Scotia company limited by shares (“Matrix PDM Canada”), MATRIX NORTH AMERICAN CONSTRUCTION, LLC, a Delaware limited liability company (“Matrix Delaware”), MATRIX SME CANADA, INC., a Delaware corporation (“Matrix SME Delaware”), and together with each other Person from time to time a “Guarantor” hereunder (together with Matrix Service International, Matrix International Engineering, Matrix Applied, MSI, Matrix PDM, Matrix PDM Canada, Matrix Delaware and Matrix SME Delaware, may each be referred to herein individually, as a “Guarantor” and collectively, as “Guarantors”), EACH LENDER FROM TIME TO TIME PARTY HERETO (collectively, the “Lenders” and individually, a “Lender”), and BANK OF MONTREAL, as Administrative Agent, Swing Line Lender and a Letter of Credit Issuer.
Preliminary Statements
A. The Borrowers have requested that Lenders, the Swing Line Lender and the Letter of Credit Issuer provide certain credit facilities to the Borrowers to finance their mutual and collective business enterprise.
B. Lenders are willing to provide the credit facilities on the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
1.01Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Account” means “accounts” as defined in the UCC or if applicable, the PPSA.
“Account Debtor” means any Person who is or may become obligated under or on account of any Account, Contractual Obligation, Chattel Paper or General Intangible.
“ACH” means automated clearing house transfers.
“Acquisition” means (a) the acquisition of a controlling Equity Interest or other ownership interest in or Control of another Person, whether by purchase of such Equity Interest or other ownership interest or upon exercise of an option or warrant for, or conversion of securities into, such Equity Interest or other ownership interest, (b) the acquisition of assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business conducted by such Person, whether in one or a series of related transactions or (c) the merger, amalgamation, consolidation or combination of a Borrower or a Restricted Subsidiary with another Person.
“Additional Commitment Lender” has the meaning specified in Section 2.18(c).
“Adjustment Date” has the meaning specified in the definition of “Applicable Margin.”
“Adjusted Term SOFR” means with respect to any tenor, the per annum rate equal to the sum of (i) Term SOFR plus (ii) 0.11448% (11.448 basis points) for an Available Tenor of one‐month’s duration and 0.26161% (26.161 basis points) for an Available Tenor of three‐months’ duration; provided, that if Adjusted Term SOFR determined as provided above shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means Bank of Montreal, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower Agent and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. For the purposes of (i) Section 8.08 and (ii) the proviso to the definition of “Eligible Assignee” only, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent or is an officer or director of the specified Person.
“Agent Indemnitee” has the meaning specified in Section 11.04(c).
“Agent Indemnitee Liabilities” has the meaning specified in Section 11.04(c).
“Aggregate Revolving Credit Commitments” means, as at any date of determination thereof, the sum of all Revolving Credit Commitments of all Lenders at such date.
“Agreement” means this Credit Agreement.
“Agreement Currency” has the meaning specified in Section 11.22.
“Allocable Amount” has the meaning specified in Section 2.15(c)(ii).
“ALTA Survey” means a survey satisfactory to the Administrative Agent prepared in accordance with the standards adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 2021, known as the “Minimum Standard Detail Requirements of Land Title
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Surveys” and sufficient form to satisfy the requirements any applicable title insurance company to provide extended coverage over survey defects and shall also show the location of all easements, utilities, and covenants of record, dimensions of all improvements, encroachments from any adjoining property, and certify as to the location of any flood plain area affecting the subject Real Property.
“Anti-Corruption Laws” means all Laws of any jurisdiction applicable to a Loan Party or any of their Subsidiaries from time to time targeting or relating to bribery or corruption, including the FCPA, the UK Xxxxxxx Xxx 0000 and the Corruption of Foreign Public Officials Act (Canada).
“Anti-Money Laundering Laws” means all Laws applicable to a Loan Party or its Subsidiaries related to terrorism financing or money laundering, including the Executive Order, the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the PATRIOT Act, the Money Laundering Control Act of 1986, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the Criminal Code (Canada).
“Applicable Margin” means, with respect to any Type of Loan, the percentages per annum set forth below, as based upon the Average Availability for the immediately preceding fiscal quarter:
| Level | Average Availability (as a percentage of Aggregate Revolving Credit Commitments) | Eurocurrency Rate Loans and SOFR Loans | Base Rate Loans or Canadian Prime Rate Loans | ||||||||
| I | > 66% | 2.50% | 1.50% | ||||||||
| II | < 66% but > 33% | 2.25% | 1.25% | ||||||||
| III | < 33% | 2.00% | 1.00% | ||||||||
From the Closing Date until the first day of each fiscal quarter, commencing with the fiscal quarter starting January 1, 2022 (the “Adjustment Date”), margins shall be determined as if Level II were applicable. From and after January 1, 2022, any increase or decrease in the Applicable Margin resulting from a change in Average Availability shall become effective as of each Adjustment Date based upon Average Availability for the immediately preceding fiscal quarter. If any Borrowing Base Certificate (including any required financial information in support thereof) of the Borrowers is not received by Administrative Agent by the date required pursuant to Section 7.02(a), then the Applicable Margin shall be determined as if the Average Availability for the immediately preceding fiscal quarter is at Level I until such time as such Borrowing Base Certificate and supporting information are received. If any Borrowing Base Certificate (including any required information in support thereof) delivered hereunder is determined at any time before the Facility Termination Date to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the pricing grid set forth in the table above, (the “Accurate Applicable Margin”) for any period that such Borrowing Base Certificate covered, then (i) the Borrower Agent shall promptly (and in any event within two (2) Business Days) deliver to the Administrative Agent a correct Borrowing Base Certificate for such period, (ii) the Applicable Margin shall be automatically and retroactively adjusted such that after giving effect to the corrected Borrowing Base Certificate, the Applicable Margin shall automatically be reset to the Accurate Applicable Margin based upon the pricing grid set forth in the table above for such period (or failing timely delivery of such corrected Borrowing Base Certificate, Level I of the table set forth above) and (iii) the Loan Parties shall promptly (and in any event within two (2) Business Days) pay to Administrative Agent, for the account of the Lenders, the accrued additional interest owing as a result of such Accurate Applicable Margin for such period, if any (or failing delivery of such corrected Borrowing Base Certificate, Level I of the table set forth above). The provisions of this definition shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.08 or otherwise and shall survive the termination of this Agreement.
“Applicable Percentage” means with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility, represented by the
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amount of the Revolving Credit Commitment of such Revolving Credit Lender at such time; provided that if the Aggregate Revolving Credit Commitments have been terminated at such time, then the Applicable Percentage of each Revolving Credit Lender shall be the Applicable Percentage of such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments,. The initial Applicable Percentage of each Lender with respect to the Revolving Credit Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.
“Appropriate Lender” means, at any time, (a) with respect to the Revolving Credit Facility, a Lender that has a Revolving Credit Commitment with respect to the Revolving Credit Facility or holds a Loan under the Revolving Credit Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the Letter of Credit Issuer and (ii) if any Letters of Credit have been issued, the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding, the Revolving Credit Lenders.
“Approved Fund” means any Fund 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.
“Arranger” means BMO Capital.
“Assignment and Assumption” means an assignment and assumption entered into by a Xxxxxx and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.
“Assumed Indebtedness” means Indebtedness of a Person which is (a) in existence at the time such Person becomes a Subsidiary or (b) assumed in connection with an Investment in or Acquisition of such Person, and which, in each case, (i) has not been incurred or created in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary, (ii) only such Person (or its Subsidiaries so acquired) are obligors with respect to such Indebtedness, (iii) such Indebtedness is not a revolving loan facility; and (iv) such Indebtedness is not secured by any Liens on working capital assets (including any assets of the type included in the Borrowing Base).
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease.
“Audited Financial Statements” means the audited Consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended June 30, 2021, and the related Consolidated statements of income or operations, retained earnings and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto, in the form and scope provided to the Administrative Agent before the Closing Date.
“Auditor” has the meaning specified in Section 7.01(a).
“Australian Dollars” means the lawful currency of Australia.
“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
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“Availability” means (a) the Maximum Borrowing Amount minus (b) Total Revolving Credit Outstandings. In calculating Availability at any time and for any purpose under this Agreement, the Borrower Agent, on behalf of the Borrowers, shall certify to the Administrative Agent that all accounts payable and Taxes are being paid on a timely basis and consistent with past practices (absent which the Administrative Agent may establish a Reserve therefor).
“Availability Period” means the period from the Closing Date to the Revolving Credit Termination Date.
“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves and adjustments thereto as the Administrative Agent from time to time determines in its Credit Judgment as being appropriate (a) to reflect the impediments to the Administrative Agent’s ability to realize upon the Eligible Borrowing Base Assets, (b) to reflect sums that any Loan Party may be required to pay under this Agreement or any other Loan Document (including taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (c) to reflect amounts for which claims may be reasonably expected to be asserted against the Eligible Borrowing Base Assets, the Administrative Agent or the Lenders or (d) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base, or the assets, business, financial performance or financial condition of any Loan Party. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) (i) Rent and Charge Reserves; (ii) the Dilution Reserve; (iii) Credit Product Reserves, (iv) Wage Claim Reserves; (v) Subcontractor Reserve; (vi) customs duties, and other costs to release Inventory which is being imported into the United States or Canada; (vii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which might have priority over the interests of the Administrative Agent in the Eligible Borrowing Base Assets; (viii) any liabilities that are or may become secured by Liens on the Collateral (including Permitted Liens) which might have priority over the Liens or interests of the Administrative Agent in the Collateral; (ix) reserves for any royalty or other compensation owing to any Person with respect to any Intellectual Property related to Borrowing Base Assets; and (x) reserves with respect to the salability of Eligible Inventory and Eligible Equipment or which reflect such other factors as affect the market value of the Eligible Inventory and Equipment, including in the case of Inventory, obsolescence, seasonality, Shrink, vendor chargebacks, imbalance, change in Inventory character, composition or mix, markdowns and out of date and/or expired Inventory.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Average Availability” means, for any period, the average of each calendar day’s Availability during such period.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code.
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“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the rate of interest announced by BMO from time to time as its prime rate for such day (with any change in such rate announced by BMO taking effect at the opening of business on the day specified in the public announcement of such change); (b) the Federal Funds Rate for such day, plus 0.50%; (c) the LIBOR RateAdjusted Term SOFR for a one month Interest Period, plus 1.00%; and (d) 1.00%.
“Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base Rate. All Base Rate Loans are available in Dollars only.
“Benchmark” means, initially, LIBORthe Term SOFR Reference Rate; provided that if the replacement of thea Benchmark Transition Event has occurred pursuant to Section 3.03(b)with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent: for the applicable Benchmark Replacement Date,
(1) For the purposes of Section 3.03(b)(i)-(ii):
(a) the sum of: (ai) TermDaily Simple SOFR andplus (bii) 0.11448% (11.448 basis points) for an Available Tenor of one‐month’s duration and 0.26161% (26.161 basis points) for an Available Tenor of three‐months’ duration;
(b) the sum of: (a) Daily Simple SOFR and (b) 0.11448% (11.448 basis points);
(2) For the purposes of Section 3.03(b)(iii), the sum of: (ai) the alternate benchmark rate and (b) and adjustment that may be positive, negative or zero in each case that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such BenchmarkAgent giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and (B) any evolving or then-prevailing market convention including any applicable recommendation made by the Relevant Governmental Body, for U.S. dollar-denominatedfor determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such timeand (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1a) or (2b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming ChangesAdjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower Agent giving due consideration to (a) any
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selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness or non-compliance will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
“Benchmark Transition Event” means, with respect to any then-current Benchmark other than the LIBOR, the occurrence of (b) a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, thethe regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that such (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.(or such component thereof); or
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(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark in accordance with Section 3.03 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark in accordance with Section 3.03.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” has the meaning specified in Section 11.21(b).
“BMO” means Bank of Montreal.
“BMO Capital” means BMO Capital Markets.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation or unlimited liability company, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b) in the case of any limited liability company, the board of managers or board of directors or sole member or manager of such Person or any Person or any committee thereof duly authorized to act on behalf of such board, (c) in the case of any partnership, the Board of Directors of a general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.
“Bonded AR Proceeds” has the meaning specified in Section 4.04(b).
“Bonded Equipment” means all now owned or hereafter acquired right, title and interest with respect to Equipment owned by a Borrower and (whether or not included in the definition of Equipment) all other personal property in each case which is delivered to, prefabricated for or specifically ordered for a Bonded Job Site, whether or not the same will be deemed to be affixed to, arise out of or relate to any real property, together with all accessions thereto.
“Bonded Inventory” means all now owned and hereafter acquired inventory of a Borrower, including, without limitation, goods, merchandise and other personal property in each case which is furnished under any Bonded Contract, all raw materials, work in process, finished goods and materials and supplies of any kind, nature or description in each case which is delivered to, prefabricated for or specifically ordered for a Bonded Job Site.
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“Bonded Job Site” means the site specified in a contract that is the subject to a payment or performance bond (or other Bonding Obligation) where any Borrower is to perform or provide the contracted for services or goods required thereunder.
“Bonding Obligations” means any and all obligations of the Company or any of its Restricted Subsidiaries to any Person to secure or assure the performance of any bid, contract, lease or statutory obligation, or otherwise constituting a bid, performance, return-of-money, surety, appeal or payment bond, contract or like undertaking, in each case, entered into by the Company or such Subsidiary in the Ordinary Course of Business.
“Borrower Agent” has the meaning specified in Section 2.15(g).
“Borrowers” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 7.02.
“Borrowing” means any of (a) a Revolving Credit Borrowing or (b) a Swing Line Borrowing, as the context may require.
“Borrowing Base” means, at any time of calculation, the Dollar Equivalent an amount equal to:
(a)the Value of Eligible Accounts (less (but without duplication) the Dollar Equivalent of all cash received but not yet applied in respect of such Eligible Accounts) multiplied by 85%; plus
(b)the Value of Eligible Time and Material Accounts (less (but without duplication) the Dollar Equivalent of all cash received but not yet applied in respect of such Eligible Time and Material Accounts) multiplied by 80%; plus
(c)the lesser of (i) the Dollar Equivalent of the Cost of Eligible Inventory multiplied by 50% and (ii) the Dollar Equivalent of $3,000,000; plus
(d)the lesser of (i) the Dollar Equivalent of the NOLV of Eligible Equipment multiplied by 85% and (ii) the Dollar Equivalent of $20,000,000; plus
(e)the lesser of (i) the Dollar Equivalent of Eligible Cash (but excluding all cash received but not yet applied in respect of, or in the reduction of, any other Borrowing Base assets) multiplied by 100% and (ii) the Dollar Equivalent of $50,000,000; less
(f)the Dollar Equivalent amount of all Availability Reserves.
The term “Borrowing Base” and the calculation thereof shall not include any assets or property acquired in any Acquisition (including any Permitted Acquisition), or otherwise outside the ordinary course of business, in each case unless (x) if so required by the Administrative Agent, the Administrative Agent has conducted Field Exams and appraisals reasonably required by it (with results reasonably satisfactory to the Administrative Agent) and (y) the Person owning such assets or property shall be a (directly or indirectly) wholly-owned Domestic Subsidiary of the Company and have become a Borrower.
“Borrowing Base Assets” means all assets of the Borrowers of the type included in the Borrowing Base, regardless of eligibility thereof.
“Borrowing Base Certificate” means a certificate, in the form of Exhibit D hereto and otherwise in satisfactory to Administrative Agent, by which Borrowers certify calculation of the Borrowing Base.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the
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Administrative Agent’s Office is located and, if such day relates to any interest rate settings as to xxx Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day.
“Capital Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“Canadian Available Tenor” means, as of any date of determination and with respect to the then-current Canadian Benchmark, as applicable, (x) if the then-current Canadian Benchmark is a term rate, any tenor for such Canadian Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Canadian Benchmark, as applicable, pursuant to this Agreement as of such date.
“Canadian Benchmark” means, initially, CDOR; provided that if a replacement of the Canadian Benchmark has occurred pursuant to Section 3.03(c), then “Canadian Benchmark” means the applicable Canadian Benchmark Replacement to the extent that such Canadian Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Canadian Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Canadian Benchmark Replacement” means, for any Canadian Available Tenor:
(1)For purposes of Section 3.03(c)(i), the first alternative set forth below that can be determined by the Administrative Agent:
(a)the sum of: (i) Term XXXXX and (ii) 0.29547% (29.547 basis points) for a Canadian Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for a Canadian Available Tenor of three-months’ duration, or
(a)the sum of: (i) Daily Compounded XXXXX and (ii) 0.29547% (29.547 basis points) for a Canadian Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for a Canadian Available Tenor of three-months’ duration; and
(2)For purposes of Section 3.03(c)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Canadian Available Tenor of such Canadian Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Canadian Relevant Governmental Body, for Canadian dollar-denominated syndicated credit facilities at such time;
provided that, if the Canadian Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Canadian Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Canadian Benchmark Replacement Conforming Changes” means, with respect to any Canadian Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day,” the definition of “Canadian Prime Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Canadian Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Canadian Benchmark
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Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Canadian Benchmark Transition Event” means, with respect to any then-current Canadian Benchmark other than CDOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Canadian Benchmark, the regulatory supervisor for the administrator of such Canadian Benchmark, the Bank of Canada, an insolvency official with jurisdiction over the administrator for such Canadian Benchmark, a resolution authority with jurisdiction over the administrator for such Canadian Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Canadian Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Canadian Available Tenors of such Canadian Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Canadian Available Tenor of such Canadian Benchmark or (b) all Canadian Available Tenors of such Canadian Benchmark are or will no longer be representative of the underlying market and economic reality that such Canadian Benchmark is intended to measure and that representativeness will not be restored.
“Canadian Borrowers” has the meaning specified in the introductory paragraph hereto.
“Canadian Dollars” means the lawful currency of Canada.
“Canadian Dollar Sublimit” means the Dollar Equivalent of $15,000,000.
“Canadian Defined Benefit Pension Plan” means each Canadian Pension Plan, other than a Canadian Multi-Employer Pension Plan, that contains a “defined benefit provision” as such term is defined in Section 147.1(1) of the Tax Act.
“Canadian Multi-Employer Pension Plan” means each Canadian Pension Plan that is a “multi-employer pension plan” as such term is defined under the PBA, and each “multi-employer plan” as such term is defined in Section 8500(1) of the Income Tax Regulations (Canada).
“Canadian Insolvency Laws” means any of the Bankruptcy Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), and any other applicable insolvency or other similar law of Canada or any province or territory thereof relating to bankruptcy, insolvency, assignments for the benefit of creditors, formal or informal moratoria, compositions, compromises or extensions generally with creditors, or proceedings seeking reorganization, recapitalization, arrangement, dissolution, liquidation, winding-up or other similar relief (including, without limitation, the Canadian corporate statutes when relied upon in connection with any of the foregoing).
“Canadian Pension Plan” means each pension plan that is a “registered pension plan” as such term is defined in subsection 248(1) of the Tax Act or that is subject to the funding requirements of the PBA and that is maintained or contributed to, or to which there is or may be an obligation to contribute by a Loan Party or any Affiliate, or in respect of which a Loan Party or any Affiliate thereof has any liability, contingent or otherwise, in each case, for or in respect of their employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec respectively.
“Canadian Pension Event” means (a) the failure of a Loan Party or any Affiliate to make required contributions when due to any Canadian Pension Plan in accordance with its terms and applicable Laws; (b) a withdrawal by a Loan Party or any Affiliate thereof from a Canadian Defined Benefit Pension Plan or a Canadian Multi-Employer Pension Plan resulting in the full or partial wind-up of such Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan or resulting in either the imposition of withdrawal liability on any Loan Party or any Affiliate thereof, or notification to any Loan Party or any Affiliate thereof concerning the imposition of any withdrawal liability; (; (c) the voluntary
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full or partial wind up of a Canadian Defined Benefit Pension Plan by a Loan Party or any Affiliate thereof, or the filing of a notice of intent to terminate a Canadian Defined Benefit Pension Plan or a Canadian Multi-Employer Pension Plan with the Chief Executive Officer of the Financial Services Regulatory Authority of Ontario, or a similar Governmental Authority of another provincial or federal jurisdiction (d) the Chief Executive Officer of the Financial Services Regulatory Authority of Ontario, or a similar Governmental Authority instituting proceedings to revoke registration or terminate, in whole or in part, any Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan or causing a trustee to be appointed to administer any Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan, or the Chief Executive Officer of the Financial Services Regulatory Authority of Ontario, or a similar Governmental Authority instituting a proceeding in respect of a Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan and such proceeding shall not have been dismissed within thirty (30) days thereafter; (e) a contribution failure in respect of any Canadian Pension Plan sufficient to give rise to a Lien, or the occurrence of any event with respect to any Canadian Pension Plan which could result in the incurrence of a liability, fine or penalty under the terms of such plan, the PBA or the Tax Act ; or (f) a Loan Party or any Affiliate thereof becomes liable for any obligations under a Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan.
“Canadian Prime Rate” means, for any day a fluctuating rate of interest per annum equal to the greatest of (a) the per annum rate of interest quoted or established as the “prime rate” of the Administrative Agent which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian Borrowers; (b) the average CDOR Rate (which shall not be less than 0.00%) for a 30-day term plus ½ of 1.00% per annum, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to any Borrower or any other Person; and (c) 1.00%. Such prime rate is based on various factors including cost and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the prime rate shall take effect at the opening of business on the day specified in the public announcement of such change.
“Canadian Prime Rate Loan” means a Revolving Credit Loan that bears interest based on the Canadian Prime Rate. All Canadian Prime Rate Loans shall be denominated in Canadian Dollars only.
“Canadian Relevant Governmental Body” means the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.
“Canadian Security Agreement” means the Security Agreement dated as of the date hereof by the Canadian Borrowers, each other Loan Parties registered or incorporated under the laws of Canada or any province or territory thereof and the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C-2.
“Capital Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, (a) for the benefit of one or more of the Letter of Credit Issuer or the Revolving Credit Lenders, as collateral for Letter of Credit Obligations or obligations of the Revolving Credit Lenders to fund participations in respect of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent and the Letter of Credit Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Letter of Credit Issuer, (b) for the benefit of the Administrative Agent, as collateral for Protective Advances or Swing Line Loans that have not been refunded by the Revolving Credit Lenders, cash or deposit account balances or, if the Administrative Agent shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent or (c) for the benefit of the Secured Parties during the continuance of an Event of Default or in connection with the Payment in Full, as collateral for any Obligations that are due or may become due, cash or deposit account balances or, if the Administrative Agent shall agree in its sole discretion, other credit support, in
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each case pursuant to documentation in form and substance satisfactory to the Administrative Agent. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means any of the following types of property, to the extent owned by the Company or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Security Instruments):
(a)cash, denominated in Dollars, or in the case of the Canadian Borrowers, denominated in Canadian Dollars;
(b)readily marketable direct obligations of the government of the United States or Canada or any agency or instrumentality thereof, or obligations the timely payment of principal and interest on which are fully and unconditionally guaranteed by the government of the United States or Canada or any state, province, territory or municipality thereof, in each case so long as such obligation has an investment grade rating by S&P and Moody’s;
(c)commercial paper rated at least P-1 (or the then equivalent grade) by Moody’s and A-1 (or the then equivalent grade) by S&P, or carrying an equivalent rating by a nationally recognized rating agency if at any time neither Moody’s nor S&P shall be rating such obligations;
(d)insured certificates of deposit or bankers’ acceptances of, or time deposits with any Lender or with any commercial bank that (i) is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in the first portion of clause (c) above, (iii) is organized under the laws of the United States or of any state thereof and (iv) has combined capital and surplus of at least $500,000,000;
(e)readily marketable general obligations of any corporation organized under the laws of any state of the United States of America or any province or territory of Canada, payable in the United States of America or Canada, as applicable, expressed to mature not later than twelve months following the date of issuance thereof and rated A or better by S&P or A3 or better by Moody’s;
(f)readily marketable shares of investment companies or money market funds that, in each case, invest solely in the foregoing Investments described in clauses (a) through (e) above; and
(g)in the case of any Subsidiary of the Company organized or having its principal place of business outside the United States or Canada, investments denominated in the currency of the jurisdiction in which such Subsidiary is organized or has its principal place of business which are similar in nature and substantially the same in term and ratings to the items specified in clauses (a) through (f) above.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
“CFC” has the meaning specified in the definition of “Excluded Subsidiary”.
“CFCHC” has the meaning specified in the definition of “Excluded Subsidiary”.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding
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anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events by which:
(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of the Company or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-4 and 13d-6 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the Equity Interests of the Company on a fully-diluted basis (and taking into account all such Equity Interests that such person or group has the right to acquire pursuant to any option right); or
(b)during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c)the Company shall fail to own and control, beneficially and of record (directly or indirectly), 100% of the issued and outstanding Equity Interests of each of its Restricted Subsidiaries, except where such failure is the result of a transaction permitted under the Loan Documents; or
(d)any “change of control” or similar event occurs under the Organic Documents of any Borrower or under any Material Contract to which any Borrower is a party.
“Closing Date” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section 11.01 (or, in the case of Section 5.01(b), waived by the Person entitled to receive the applicable payment).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means, collectively, certain property of the Loan Parties or any other Person in which the Administrative Agent or any Secured Party is granted a Lien under any Security Instrument as security for all or any portion of the Obligations or any other obligation arising under any Loan Document.
“Commitment Increase” has the meaning specified in Section 2.18(a).
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency RateSOFR Loans, in each case, described in Section 2.02.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company” means Matrix.
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“Compliance Certificate” means a certificate substantially in the form of Exhibit B.
“Concentration Account” has the meaning specified in Section 4.04(b).
“Conforming Changes” means with respect to either the use of administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” the definition of “U.S. Government Securities Business Day”, the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (and acting in consultation with the Borrower) may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Conforming Credit Product Obligations” means Credit Product Obligations (a) established pursuant to a Credit Product Notice delivered at a time no Event of Default shall be continuing and (b) up to a maximum amount (or, in the case of Credit Product Obligations arising under Swap Contracts, the Swap Termination Value thereunder) specified in such Credit Product Notice (whether delivered to establish or increase the amount thereof) to the extent that no Overadvance would exist if a Credit Product Reserve were established therefore on the date of such Credit Product Notice.
“Consolidated” means the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.
“Consolidated Capital Expenditures” means, with respect to the Company and its Restricted Subsidiaries on a Consolidated basis, for any period the sum of (without duplication) all expenditures (whether paid in cash or accrued as liabilities) by the Company or any Restricted Subsidiary during such period for items that would be classified as “property, plant or equipment” or comparable items on the Consolidated balance sheet of the Company and its Restricted Subsidiaries, including without limitation all transactional costs incurred in connection with such expenditures provided the same have been capitalized; provided that Consolidated Capital Expenditures shall exclude any capital expenditures (a) financed with Indebtedness permitted hereunder other than Loans, (b) made with (i) Net Cash Proceeds from any Disposition described in Section 8.05(b) or (ii) proceeds of insurance arising from any casualty or other insured damage or from condemnation or similar awards with respect to any property or asset, in each case, to the extent such proceeds are reinvested within ninety days of receipt thereof, and (c) constituting any portion of the purchase price of an Permitted Acquisition which is accounted for as a capital expenditure.
“Consolidated Cash Balance” means, at any time, (a) the aggregate amount of unrestricted cash and Cash Equivalents held or controlled by the Borrowers and their Restricted Subsidiaries (other than amounts held in the Equity Repurchase Program Securities Account, in the JP Credit Card Cash Collateral Account or in a Qualified Account) minus (b) the sum of (i) Cash Collateral that is Cash Collateralizing Obligations in accordance with this Agreement plus (ii) any outstanding checks and similar payment items issued by Borrowers and their Restricted Subsidiaries in the ordinary course of business and pending electronic funds transfers of Borrowers and their Restricted Subsidiaries.
“Consolidated EBITDA” means, for any period, the result of (a) Consolidated Net Income for such period; plus, to the extent deducted in determining such Consolidated Net Income, without duplication, (i) Consolidated Interest Charges (net of interest income for such period of the Company and its Restricted Subsidiaries) for such period, plus (ii) federal, state, provincial, territorial local and foreign
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income tax expense for such period, net of income tax credits, plus (iii) depreciation and amortization for such period, plus (iv) non-cash compensation expense, or other non-cash expenses or charges, for such period arising from the granting of stock options, stock appreciation rights or similar equity arrangements, plus (v) non-cash expenses or losses and other non-cash charges incurred during such period (excluding any non-cash charges representing an accrual of, or reserve for, cash charges to be paid within the next twelve months and reduced by any cash payments made during such period in respect of such non-cash items added back in a prior period); plus (vi) expenses of up to $1,000,000 in the aggregate during the term of this Agreement incurred in connection with the Transaction, plus or (minus) (vii) any extraordinary gains or (losses) incurred other than those incurred in the ordinary course of business; minus (b) the sum of (i) non-cash income, gains or profits during such period plus (ii) to the extent included in calculating Consolidated Net Income for such period, the non-cash portion (as to the Company or the applicable Subsidiary) of any income that is generated by a Joint Venture for such period; in each case for clauses (a) and (b) above as determined for the Company and its Restricted Subsidiaries on a Consolidated basis and subject to applicable Pro Forma Adjustments.
“Consolidated Fixed Charge Coverage Ratio” means the ratio, determined on a Consolidated basis for the Company and its Restricted Subsidiaries for the applicable Measurement Period, of (a) Consolidated EBITDA minus Consolidated Capital Expenditures to (b) Consolidated Fixed Charges.
“Consolidated Fixed Charges” means, for any period, for the Company and its Restricted Subsidiaries on a Consolidated basis, the sum of, without duplication, (a) Consolidated Interest Charges paid or required to be paid in cash during such period, (b) all principal repayments made or required to be made of Consolidated Funded Indebtedness during such period, but excluding (i) any such payments to the extent constituting a refinancing of such Consolidated Funded Indebtedness through the incurrence of additional Indebtedness otherwise expressly permitted under Section 8.02 and (ii) repayments of Revolving Credit Loans, (c) the greater of (i) the aggregate amount of federal, state, provincial, territorial, local and foreign income taxes paid in cash (less any refunds actually received in cash with respect to taxes for the same period), in each case, of or by the Company and its Restricted Subsidiaries during such period and (ii) $0, and (d) all Restricted Payments made in cash during such period.
“Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a Consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under standby and commercial letters of credit (excluding the undrawn amount thereof), bankers’ acceptances, bank guaranties (excluding the amounts available thereunder as to which demand for payment has not yet been made), surety bonds (excluding the amounts available thereunder as to which demand for payment has not yet been made) and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable arising in the Ordinary Course of Business not more than sixty (60) days past due, (e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Company or a Restricted Subsidiary is a general partner or joint venturer, to the extent such Indebtedness is recourse to the Company or such Restricted Subsidiary.
“Consolidated Interest Charges” means, with respect to the Company and its Restricted Subsidiaries for any period ending on the date of computation thereof, the gross interest expense of the Company and its Restricted Subsidiaries, including without limitation (a) the current amortized portion of all fees (including fees payable in respect of any Swap Contract in the nature of an interest rate hedge and all fees payable in respect of any Letter of Credit) payable in connection with the incurrence of Indebtedness to the extent included in gross interest expense and (b) the portion of any payments made in connection with Capital Leases allocable to interest expense, all determined on a Consolidated basis;
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provided however, that Consolidated Interest Charges shall include the amount of payments in respect of Synthetic Lease Obligations that are in the nature of interest.
“Consolidated Net Income” means, for any period, for the Company and its Restricted Subsidiaries on a Consolidated basis, the net income after taxation of the Company and its Restricted Subsidiaries for that period excluding (a) net income, expenses, losses or gains realized in connection with (i) any sale, lease, conveyance or other disposition of any asset (other than in the Ordinary Course of Business), or (ii) repayment, repurchase or redemption of Indebtedness (including any cancellation or early extinguishment of Indebtedness), and (b) extraordinary or nonrecurring gain or income (or expense), in either case consented by the Administrative Agent; provided that there shall be excluded from Consolidated Net Income, without duplication, (x) the net income or loss of (x) any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting to the extent of the amount of dividends or distributions are not actually paid to the Company or a Restricted Subsidiary in cash, (y) any Person in which any other Person (other than the Company or a Subsidiary) has an ownership interest, except to the extent of the amount of dividends or other distributions actually paid in cash to the Company or a Restricted Subsidiary by such Person during such period and (z) any Person the ability of which to make Restricted Payments is restricted by any agreement or Organization Document, except to the extent of the amount of dividends or other distributions actually paid in cash to the Company or a Restricted Subsidiary by such Person during such period to the extent permitted to be paid.
“Consolidated Total Assets” means, as of any date of determination, the total assets of the Company and the Restricted Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Company delivered pursuant to Section 7.01 or, for the period prior to the time any such statements are so delivered pursuant to Section 7.01, the pro forma financial statements otherwise previously delivered to the Administrative Agent.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“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.
“Control Agreement” means, with respect to any Deposit Account, Securities Account or Commodity Account, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC or PPSA) over such account to the Administrative Agent.
“Controlled Account Bank” means each bank with whom Deposit Accounts are maintained in which any funds of any of the Loan Parties are concentrated and with whom a Control Agreement has been, or is required to be, executed in accordance with the terms hereof.
“Controlled Deposit Account” means each Deposit Account (including all funds on deposit therein) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a financial institution approved by the Administrative Agent.
“Controlled Persons” means, with respect to any Person, (a) its Subsidiaries and Affiliates, (b) its officers, directors, employees and agents and (c) the officers, directors, employees and agents of such Subsidiaries and Affiliates.
“Core Business” means any material line of business conducted by the Company and its Subsidiaries as of the Closing Date and any business directly related thereto.
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“XXXXX” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Cost” means (a) with respect to Inventory, the lower of (i) cost (as reflected in the general ledger of such Person) and (ii) market value, in each case, determined in accordance with GAAP calculated on a first-in, first-out basis and in accordance with the Loan Parties’ accounting practices as in effect on the Closing Date and (b) with respect to Equipment, Real Property and other property, the lower of (i) cost (as reflected in the general ledger of such Person) and (ii) market value, in each case, determined in accordance with GAAP.
“Covered Entity” has the meaning specified in Section 11.21(b).
“Credit Exposure” means, as to any Lender at any time, the aggregate amount of such Xxxxxx’s Revolving Credit Exposure at such time.
“Credit Extension” means each of the following: (a) a Borrowing and (b) a Letter of Credit Extension.
“Credit Judgment” means, with reference to the Administrative Agent, a determination made in good faith using reasonable business judgment (from the perspective of a secured, asset-based lender).
“Credit Product Arrangements” means, collectively, (a) Swap Contracts between a Loan Party and any Lender or Affiliate of a Lender and (b) Treasury Management and Other Services.
“Credit Product Notice” means the written notice from a Credit Product Provider and the Borrower Agent to the Administrative Agent relating to Credit Product Arrangements in the form of Exhibit G hereto, or such other form as may be acceptable to the Administrative Agent.
“Credit Product Obligations” means Indebtedness and other obligations of any Loan Party (a) arising under Credit Product Arrangements, (b) owing to any Credit Product Provider and (c) only if owing to a Credit Product Provider other than BMO or its Affiliates, as to which a Credit Product Notice has been delivered to the Administrative Agent in which the Borrower Agent has expressly requested that such obligations be treated as Credit Product Obligations for purposes hereof; provided, however, Credit Product Obligations shall not include Excluded Swap Obligations.
“Credit Product Provider” means BMO or any of its Affiliates, so long as such provider and the Borrower Agent deliver a Credit Product Notice to the Administrative Agent by the later of the Closing Date or, if not outstanding on the Closing Date, ten (10) days following the entering into of the applicable Credit Product Arrangement, (i) describing the Credit Product Arrangement and setting forth the maximum amount of Credit Product Obligations thereunder to be secured by the Collateral (and, if all or any portion of such Credit Product Obligations arise under Swap Contracts, the Swap Termination Value of such Credit Product Obligations) and the methodology to be used in calculating such amount and (ii) agreeing to be bound by Section 10.12.
“Credit Product Reserve” means (a) reserves which shall be established by the Administrative Agent in an amount equal to not less than the last reported Swap Termination Value (as given in accordance with the definition of Credit Product Obligation) of the then outstanding Priority Swap Obligations for the account of the Loan Parties or their Affiliates, and (b) reserves established by the Administrative Agent from time to time in its discretion to reflect the reasonably anticipated liabilities in respect of the then outstanding Credit Product Obligations.
“Daily Compounded XXXXX” means, for any day, XXXXX with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Administrative Agent in accordance with the methodology and conventions for this rate selected or recommended by the Canadian Relevant Governmental Body for determining compounded XXXXX for business loans; provided that if the
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Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion; and provided that if the administrator has not provided or published XXXXX and a Canadian Benchmark Transition Event with respect to XXXXX has not occurred, then, in respect of any day for which XXXXX is required, references to XXXXX will be deemed to be references to the last provided or published XXXXX.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Exchange Rate” means the daily average exchange rate as published by a reputable source chosen from time to time by the Administrative Agent and as determined by the Administrative Agent, provided that, if any such date of determination is not a Business Day, then it shall be the Daily Exchange Rate as of the most recently ended Business Day. “Debtor Relief Laws” means the Bankruptcy Code of the United States, the Canadian Insolvency Laws, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Deed of Hypothec” means the deed of hypothec creating a hypothec in favor of the Administrative Agent, as hypothecary representative for the benefit of the Secured Parties, pursuant to the laws of the Province of Québec on the assets of any of the Canadian Borrowers or any other Loan Party existing under the laws of the Province of Québec, having its domicile (within the meaning of the Civil Code of Québec) in the Province of Québec or having a place of business or tangible property situated in the Province of Québec.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would unless cured or waived be an Event of Default.
“Default Rate” means an interest rate equal to the sum of (a) the Base Rate or the Canadian Prime Rate, as applicable, plus (b) the Applicable Margin with respect to Base Rate Loans, plus (c) 2% per annum; provided, however, that (i) with respect to any Eurocurrency Rate Loan or SOFR Loan, until the end of the Interest Period during which the Default Rate is first applicable, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Eurocurrency Rate Loan or SOFR Loan, as applicable, plus 2% per annum, and thereafter as set forth in the portion of this sentence preceding this proviso, and (ii) with respect to Letter of Credit Fees, the Default Rate shall equal the Letter of Credit Fee, then in effect plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.
“Default Right” has the meaning specified in Section 11.21(b).
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower Agent in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including, in the case of any Revolving Credit Lender, in respect of its participations in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified any Borrower, the Administrative Agent, the Letter of Credit Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to
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that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower Agent, to confirm in writing to the Administrative Agent and the Borrower Agent that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower Agent), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination by the Administrative Agent to the Borrower Agent, the Letter of Credit Issuer, the Swing Line Lender and each other Lender.
“Designated Jurisdiction” means, at any time, any country, region or territory which is itself the target of Sanctions broadly restricting or prohibiting dealings with such country, region or territory (including, without limitation, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria).
“Dilution Percent” means the percent, for the most recently ended period of twelve consecutive months, equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts for such period, divided by (b) gross sales for such period.
“Dilution Reserve” means, at any date of determination, (a) the percentage amount by which the Dilution Percent exceeds 5.0% times (b) the amount of Eligible Accounts of the Borrowers.
“Direct Foreign Subsidiary” means a Subsidiary, other than a Domestic Subsidiary that is not a CFCHC, a majority of whose Voting Equity Interests are owned by the Company or a Domestic Subsidiary.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including by Division, any sale and leaseback transaction, any casualty or condemnation or otherwise) of any property (including any Equity Interest), or part thereof, by any Person, and including any sale, assignment, transfer, forgiveness, write-off or other disposal, with or without recourse, of any Investment, notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 180 days after the Maturity Date, (b) is convertible into or exchangeable for debt securities (unless only occurring at the sole option of the issuer thereof), (c) (i) contains any repurchase obligation that may come into effect prior to, (ii) requires cash dividend payments (other than taxes) prior to, or (iii) provides the holders thereof with any rights to receive any cash upon the occurrence of a change of control or sale of assets prior to, in each case, the
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date that is 180 days after the Maturity Date; provided, however, that (i) with respect to any Equity Interests issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Company or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability and (ii) any class of Equity Interest of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not a Disqualified Equity Interest, such Equity Interests shall not be deemed to be Disqualified Equity Interests and (iii) only the portion of such Equity Interests which so matures or is so mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests.
“Division” means the creation of one or more new limited liability companies by means of any statutory division of a limited liability company pursuant to any applicable limited liability company act or similar statute of any jurisdiction. “Divide” shall have the corresponding meaning.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount in Dollars, (b) with respect to any amount denominated in Canadian Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time of calculation on the basis of the applicable Spot Rate and (c) with respect to any amount denominated in Australian Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time of calculation on the basis of the applicable Spot Rate.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States (but excluding any territory or possession thereof).
“Dominion Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs and is continuing or (ii) Availability is less than the greater of (x) 17.5% of the Aggregate Revolving Credit Commitments at such time and (y) $17,500,000 and (b) continuing until the date that during the previous sixty (60) consecutive days, (i) no Event of Default has existed and (ii) Availability has been greater than the greater of (x) 17.5% of the Aggregate Revolving Credit Commitments at such time and (y) $17,500,000 at all times during such period; provided, however, that a Dominion Trigger Period may not be cured as contemplated by clause (b) more than two (2) times in any fiscal year.
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
“Early Opt-in Election” means the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
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an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” means Accounts due to a Borrower that are determined by the Administrative Agent, in its Credit Judgment, to be Eligible Accounts. Except as otherwise agreed by the Administrative Agent at its sole option, and without limiting the ability of the Administrative Agent to exercise its Credit Judgment to determine whether an Account constitutes an Eligible Account, each of the following shall be deemed to be Accounts that are not Eligible Accounts:
(a)Accounts that are not fully earned by performance (or otherwise represent a progress or milestone billing, a pre-billing or an otherwise contingent Account (it being agreed that, without limiting the foregoing, an Account shall be eligible under this clause if such Account is conditioned upon such Borrower’s satisfactory completion of any further performance under the agreement related to such Account, or if such Borrower has any remaining performance obligations (other than customary warranty obligations not then performable) under any such agreement related to such Account)) or not evidenced by a written invoice which has been delivered to the applicable Account Debtor;
(b)Accounts that have been outstanding for more than ninety (90) days from the invoice date or more than sixty (60) days past the original due date, whichever comes first;
(c)Accounts due from any Account Debtor, fifty percent (50%) of whose Accounts or of those Accounts of its Affiliates are otherwise ineligible under the terms clause (b) above (whether by application of clause (b) under this definition and/or by cross-reference thereto under the definition of Eligible Time and Material Accounts, or both);
(d)Accounts due from any Sanctioned Person or that otherwise involve transactions or dealings that are prohibited by or would cause the Administrative Agent, Swing Line Lender, Letter of Credit Issuer, any Lender or Loan Party to be in violation of Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions;
(e)Accounts with respect to which (i) any representation or warranty set for in any Loan Document with respect thereto is not true and correct in all material respects, (ii) a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than junior Permitted Liens), (iii) is not subject to a perfected first priority Lien in favor of the Administrative Agent (and without limiting the foregoing, the proceeds of such Account may not be subject to any trust (whether arising by contract or Law) in respect of the application of such proceeds) or (iv) the applicable Account Debtor has not been instructed to (or does not in fact) remit payment to a deposit account of a Borrower subject to a Control Agreement;
(f)Accounts which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent of such dispute, counterclaim, offset or chargeback, provided that in order for an Account to be eligible under this “but only” clause, such dispute, counterclaim, offset or chargeback must be reducible to liquidated sum (with the calculation thereof being acceptable to the Administrative Agent);
(g)Accounts which (i) do not arise out of a sale of goods or rendition of services (in each case, excluding warranty contracts on a standalone basis) in the Ordinary Course of Business, (ii) do not arise upon credit terms usual to the business of the Borrowers, (iii) are not payable in Dollars, (iv) is not payable to a Borrower or (v) have been determined to be uncollectible;
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(h)Accounts (i) upon which a Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever, including cash on delivery and cash in advance transactions or (ii) as to which a Borrower is not able to bring suit or otherwise enforce its remedies against the related Account Debtor through judicial process;
(i)Accounts which are owed by any officer, director, agent or Affiliate any Borrower;
(j)Accounts for which all material consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required to be obtained, effected or given in connection with the performance of such Account by the Account Debtor or in connection with the enforcement of such Account by the Administrative Agent have not been duly obtained, effected or given or are not in full force and effect;
(k)Accounts due from an Account Debtor either which is the subject of any bankruptcy, insolvency or similar proceeding under any Debtor Relief Laws, has had a trustee or receiver appointed for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business, or which is a party to any litigation, arbitration or other proceeding with a Loan Party;
(l)Accounts due from any Governmental Authority, except to the extent that the subject Account Debtor is the federal government of the United States of America and has complied with the Federal Assignment of Claims Act of 1940 and any similar state legislation;
(m)Accounts (i) owing from any Account Debtor that is also a supplier to or creditor of a Borrower, unless such Person has waived in writing any right of setoff in a manner reasonably acceptable to the Administrative Agent but only to the extent of the aggregate amount of such Borrower’s liability to such Account Debtor, (ii) to the extent representing any manufacturer’s or supplier’s allowances, credits, discounts, incentive plans or similar arrangements entitling such Borrower to discounts on future purchase therefrom, (iii) to the extent constituting amounts owed with respect to loans or advances, or (iv) to the extent relating to payment of interest, fees, late charges or Taxes;
(n)Accounts arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return, setoff or charge back
(o)Accounts where any return, rejection or repossession of any services or asset has occurred the sale or provision of which gave rise to such Account, or whether the underlying agreement has been canceled by the Account Debtor;
(p)Accounts arising out of sales or services to any Account Debtor organized or having its principal office or substantially all assets outside the United States or Canada unless either (i) such Accounts are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, acceptable to the Administrative Agent and such irrevocable letter of credit is in the possession of the Administrative Agent, or (ii) such Accounts are supported by credit insurance on terms and from providers acceptable to the Administrative Agent, including naming the Administrative Agent as an additional insured and loss payee;
(q)Accounts that are evidenced by any judgment, Instrument or Chattel Paper;
(r)Accounts due from an Account Debtor and its Affiliates, the aggregate of which Accounts (including Eligible Accounts and Eligible Time and Material Accounts) due from such Account Debtor and its Affiliates represents more than twenty percent (20%) of all then outstanding Accounts owed to the Borrowers, but only to the extent of such excess;
(s)Accounts that remain open after the applicable Account Debtor has made a partial payment in respect of the applicable invoice (whether or not the applicable Account Debtor has provided an explanation for such partial payment);
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(t)Accounts where the applicable Account Debtor tendered a check or other item of payment in full or partial satisfaction and such check or other item of payment has been returned by the financial institution on which it is drawn;
(u)Accounts arising from the sale or rental of goods where such goods are the subject of a Capital Lease or any purchase money financing arrangement;
(v)Accounts for which payment has been received by the applicable Borrower but such payment has not been applied to the applicable Account;
(w)Accounts for which amounts (including any amounts constituting retainage) remain owing to any providers of materials or laborers (other than employees of a Loan Party, which amounts owing to employees may be subject to an Availability Reserve) who provided materials or services, or both, related to the sale of goods or performance of services that gave rise to the applicable Account, unless (at the Administrative Agent’s election) such amounts have been specifically and fully Reserved;
(x)such Account is owed by an Account Debtor as to which a Borrower has entered into a factoring or similar agreement with respect to any of the Accounts owing by such Account Debtor to a Borrower (regardless of whether such Account has been factored);
(y)Accounts for which the underlying sale and other documentation governing such Account is not governed by the laws of the United States or in the case of any Accounts of a Canadian Borrower, any state thereof or Canada or any province or territory thereof;
(z)Accounts (or any portion thereof) representing retainage; or
(aa)Accounts arising from a sale of goods or performance of services subject to a payment or performance bond, any other Bonding Obligation or otherwise supported by a Surety; and without limiting the foregoing, any Account whose proceeds would constitute (once paid) Bonded AR Proceeds shall not constitute an Eligible Account.
“Eligible Assignee” means (a) a Lender or any of its Affiliates; (b) an Approved Fund; and (c) any other Person (other than a natural person) approved by (i) the Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender (each such approval not to be unreasonably withheld or delayed), and (ii) unless an Event of Default has occurred and is continuing, the Borrower Agent (such approval not to be unreasonably withheld or delayed); provided that, notwithstanding the foregoing, absent the written consent of the Administrative Agent, “Eligible Assignee” shall not include a Loan Party or any of the Loan Parties’ Affiliates or any counterparty to any Subordination Provisions or such counterparty’s Affiliates.
“Eligible Borrowing Base Assets” means all Eligible Inventory, Eligible Accounts, Eligible Time and Material Accounts, Eligible Cash and Eligible Equipment.
“Eligible Cash” means unrestricted cash and cash equivalents of the Borrowers from time to time deposited in a Qualified Account. In no event may (i) any Bonded AR Proceeds constitute Eligible Cash at any time that Section 4.04(b) requires that such Bonded AR Proceeds be held in a segregated Controlled Deposit Account and not commingled with other non-Bonded AR Proceeds, or (ii) any amounts held in the Equity Repurchase Program Securities Account constitute Eligible Cash.
“Eligible Equipment” means Equipment owned by a Borrower as of the Closing Date that continues to be owned by such Borrower thereafter and is determined by the Administrative Agent, in its Credit Judgment, to be Eligible Equipment. Except as otherwise agreed by the Administrative Agent at its sole option, and without limiting the ability of the Administrative Agent to exercise its Credit Judgment to determine whether Equipment constitutes Eligible Equipment, each of the following shall be deemed to be Equipment that is not Eligible Equipment:
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(a)Equipment as to which a Borrower does not have good, valid, and marketable title;
(b)Equipment as to which a Borrower does not have actual and exclusive possession thereof (either directly or, in the Ordinary Course of Business, through a bailee, processor, or agent of such Borrower);
(c)except for (i) at any time during the first sixty (60) days following the Closing Date, and (ii) at any time thereafter, (A) Equipment being utilized by a Loan Party at a customer project site in the Ordinary Course of Business, or (B) Equipment located on Real Property for which a Lien Waiver is not required hereunder, Equipment located on Real Property not owned by a Borrower, or owned by a Borrower but subject to a third party mortgage or similar encumbrance, unless subject to a Lien Waiver to the extent required hereunder for such Equipment, provided that (1) the Administrative Agent may elect to waive such requirement hereunder for such Equipment (and for the avoidance of doubt, such waiver shall not preclude the Administrative Agent from electing to impose a Rent and Charges Reserve in connection with such Equipment), or (2) even if a Lien Waiver is not required hereunder, the Administrative Agent may elect to impose a Rent and Charges Reserve at any time for such Equipment located on any Real Property for which a Lien Waiver has not been delivered;
(d)Equipment that is materially damaged, defective or otherwise unfit for use in its intended purpose;
(e)Equipment that is not subject to a valid and perfected first-priority Lien of the Administrative Agent, subject to no other Liens (unless subject to a Lien Waiver), or otherwise does not comply with each of the representations and warranties and covenants applicable to Equipment made by the Borrowers in this Agreement and each applicable Security Instrument; provided with respect to any Eligible Rolling Stock, the perfection (as opposed to the attachment or any other aspect) of the Administrative Agent’s Lien thereon may be deferred to the date (to the extent expressly) provided in Schedule 7.21;
(f)Equipment that is Rolling Stock, unless constituting Eligible Rolling Stock; or
(g)Equipment that is Bonded Equipment.
“Eligible Inventory” means Inventory of a Borrower that is determined by the Administrative Agent, in its Credit Judgment, to be Eligible Inventory. Except as otherwise agreed by the Administrative Agent at its sole option, the following items of Inventory shall not be included in Eligible Inventory:
(a)Inventory that is not solely owned by a Borrower or a Borrower does not have good and valid title thereto;
(b)Inventory that (i) does not consist of finished goods or raw materials or (ii) is not readily saleable in the Ordinary Course of Business;
(c)Inventory that does not comply with each of the covenants, representations and warranties respecting Inventory made by the Borrowers in the Loan Documents;
(d)Inventory that is leased by or is on consignment to a Borrower (whether as lessor, lessee, consignor or consignee);
(e)Inventory that is not located in the United States of America or Canada (excluding territories or possessions of the United States or Canada);
(f)Inventory that is not at a location that is owned by a Borrower; provided, however, that such Inventory that is located on leased premises or in the possession of a warehouseman, bailee, processor, repairman, mechanic or similar other Person in the ordinary course of business shall not be
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excluded from Eligible Inventory under this clause (f), so long as at any time following the sixtieth (60th) day after the Closing Date, the lessor or such Person possessing such Inventory has delivered a Lien Waiver to the Administrative Agent to the extent required hereunder for such Inventory, provided further that (A) the Administrative Agent may elect to waive such requirement hereunder for such Inventory (and for the avoidance of doubt, such waiver shall not preclude the Administrative Agent from electing to impose a Rent and Charges Reserve in connection with such Inventory), or (B) even if a Lien Waiver is not required hereunder, the Administrative Agent may elect to impose a Rent and Charges Reserve at any time for such Inventory located on any Real Property for which a Lien Waiver has not been delivered;
(g)Inventory held at any location (owned or a third-party location) with an aggregate Cost of Inventory at such location of less than the Dollar Equivalent of $100,000, notwithstanding receipt of a Lien Waiver or implementation of a Rent and Charge Reserve as provided under clause (f) above;
(h)Inventory that is in transit, except between locations of Borrowers (or between locations of Borrowers and processors or vendors in the Ordinary Course of Business);
(i)Inventory that is comprised of goods which (i) are damaged, defective, “seconds” or otherwise unmerchantable, (ii) have been returned or are to be returned to the vendor or (iii) are discontinued products, obsolete or slow moving;
(j)Inventory consisting of work-in-process (unless work-in-progress approved by the Administrative Agent) or spare parts;
(k)Inventory consisting of promotional, marketing, packaging and shipping materials or supplies used or consumed in the Borrowers’ business and other similar non-merchandise categories;
(l)Inventory that is not in compliance with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale;
(m)Inventory that is subject to any warehouse receipt, bill of lading or negotiable Document that has not been issued to or in the name of the Administrative Agent;
(n)Inventory consisting of or containing Hazardous Materials;
(o)Inventory that is not subject to a perfected first priority Lien in favor of the Administrative Agent (subject only to Permitted Liens set forth in clauses (c), (d) or (m) of Section 8.02 hereof);
(p)Inventory that is not insured in compliance with the provisions of this Agreement and the other Loan Documents;
(q)Inventory not on a perpetual schedule;
(r)Inventory that consists of bill and hold goods or goods that have been sold but not yet delivered;
(s)Inventory that is subject to any License or other arrangement that restricts such Borrowers’ or the Administrative Agent’s right to dispose of such Inventory, unless (i) Administrative Agent has received an appropriate Lien Waiver; and (ii) such Borrowers have not received notice of a dispute in respect of any such License or other arrangement; or
(t)Inventory that is Bonded Inventory.
“Eligible Rolling Stock” means Eligible Equipment consisting of Rolling Stock that (a) meets, in all material respects, all applicable material safety or regulatory standards applicable to it for the use for
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which it is intended or for which it is being used; (b) the ownership of which is evidenced by a Certificate of Title that has the name of a Borrower noted thereon as the owner of it and is otherwise properly registered (with all registration fees paid) in one of the states of the United States to such Borrower that is entitled to operate such Rolling Stock in the state that has issued such Certificate of Title in accordance with all applicable laws (other than any Rolling Stock the ownership of which is not required to be evidenced by a Certificate of Title under the laws applicable to it) and the Administrative Agent have received such evidence thereof as it may require; (c) at the request of the Administrative Agent, the Certificate of Title (if in paper format) with respect to any such Rolling Stock is delivered to the Administrative Agent; (d) meets, in all material respects, all applicable material standards of all motor vehicle laws or other statutes and regulations established by any Governmental Authority and is not subject to any licensing or similar requirement that would limit the right of the Administrative Agent to sell or otherwise dispose of such Rolling Stock; (e) is used or usable in the ordinary course of a Borrower’s business and has not been damaged in any material respect or in an inoperable condition that continues for any period of more than thirty (30) consecutive days; and (f) is insured in accordance with the requirements of this Agreement.
“Eligible Time and Material Accounts” means, with respect to any Borrower as of any date of determination, each Account of such Borrower (other than Eligible Accounts) arising in the Ordinary Course of Business with respect to a fixed-price or cost-plus contract that requires Borrower to satisfy specified progress milestones or performance standards between such Borrower and its customer, in each case that (i) is in accordance in all material respects with the applicable billing procedures, performance thresholds and other provisions of an executed contract or other documentation satisfactory to Administrative Agent in its sole discretion with the applicable Account Debtor, (ii) has been verified to Administrative Agent’s satisfaction pursuant to field examinations and other verifications from time to time performed on behalf of Administrative Agent pursuant to the terms of this Agreement, (iii) the services or goods represented by the Account and also, any other services then required to be performed and any other goods then required to be delivered, in each case through the date of determination under the related contract, in each case have been performed or delivered, or both (as applicable) and accepted by the Account Debtor, (iv) is otherwise satisfactory to Administrative Agent in its sole discretion and (v) would otherwise constitute an Eligible Account but for only the fact that such Account arises from a milestone or progress billing. In addition, no Account shall constitute an Eligible Time and Material Account if:
(a)such Account is not billable solely upon either the time the applicable Borrower spent multiplied by an hourly rate or a specified price (or a cost plus formulation) with respect to goods provided;
(b)such Account arises from a contract in which such Borrower would collect in excess of $100,000 in the aggregate pursuant to its terms, but only to the extent of any such excess;
(c)it arises from a sale of goods or performance of services subject to a performance or payment bond (or any other Bonding Obligation) or otherwise supported by a Surety, unless an agreement between Administrative Agent and such bonding company or Surety has been entered into which is in form and substance acceptable to Administrative Agent at its sole option;
(d)such Account requires a period of more than three (3) months (or such longer time period as may be approved by the Administrative Agent at its sole option) for the applicable Borrower to start and complete the sale of underlying goods or performance of services;
(e)such Account represents xxxxxxxx less than cost; or
(f)such Account is not subject to Administrative Agent’s first priority perfected security interest or is subject to any other Lien (other than junior Permitted Liens). Without limiting the foregoing, the proceeds of such Account may not be subject to any trust (whether arising by contract or Law) in respect of the application of such proceeds.
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“Environmental Laws” means any and all federal, state, provincial, territorial, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a Loan Party or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of or partnership or membership interest in (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of or partnership or membership interest in (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of or partnership or membership interest in (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares, interests or units (or such other interests), and all of the other ownership or profit interests in such Person, whether voting or nonvoting, and whether or not such shares, units, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(3) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) with respect to a Pension Plan, the filing by any Loan Party or any other ERISA Affiliate of a notice of intent to terminate (or treatment of a plan amendment as termination) under Section 4041 of ERISA or Section 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; or (i) the failure of any Loan Party or an ERISA Affiliate to make any required contribution to any Pension Plan when due. Notwithstanding the foregoing, a complete withdrawal (within the meaning of Section 4203 of ERISA) shall not occur for any Loan Party or ERISA Affiliate that has an obligation to contribute under a Multiemployer Plan for work performed in the building and construction industry, unless the requirements of Section 4203(b) of ERISA are met.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor thereto), as in effect from time to time.1
1 The EU Bail-In Legislation Schedule may be found at xxxx://xxx.xxx.xx.xxx/xxxxxxx/xxxxx/XX%00XXXX-XX%00XXXXXXXXXXX%00XXXXXXXX%0000-Xxx-0000%0000-00%00.xxx
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“Eurocurrency liabilities” has the meaning specified in Section 3.04(e).
“Eurocurrency Rate” means:
(a)for any Interest Period, with respect to any Credit Extension:
(i)denominated in Dollars, the LIBOR Rate; and
(ii)denominated in Canadian Dollars, the rate per annum equal to the Canadian Dollar Offered Rate (“CDOR”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “CDOR Rate”) at or about 10:00 a.m10:20 a.m. (Toronto, Ontario 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) (or if such day is not a Business Day, then on the immediately preceding Business Day) with a term equivalent to such Interest Period; and
(b)for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to ICE LIBOR, at approximately 11:00 a.m., London time determined two (2) London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day;
provided that, (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice, except to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii) if any component of the Eurocurrency Rate shall be less than the Floor at any time, such rate shall be deemed equal to the Floor for purposes of this Agreement.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in Dollars or up to the Canadian Dollar Sublimit, denominated in Canadian Dollars.
“Event of Default” has the meaning specified in Section 9.01.
“Exchange Act” means the Securities Exchange Act of 1934 and the regulations promulgated thereunder.
“Excluded Deposit Account” means (a) Trust Accounts, (b) zero balance disbursement accounts, (c) other Deposit Accounts maintained in the Ordinary Course of Business containing cash amounts that do not exceed at any time the Dollar Equivalent of $250,000 for any such account and the Dollar Equivalent of $750,000 in the aggregate for all such accounts under this clause (c), (d) other Deposit Accounts maintained with foreign banks or other foreign financial institutions outside of the United States and Canada that do not exceed at any time the Dollar Equivalent of $4,500,000 in the aggregate for all such accounts under this clause (d) and (e) for the one hundred twenty (120) day period after the Closing Date, the JPM Credit Card Cash Collateral Account.
“Excluded Equity Interests” means (a) any of the outstanding Voting Equity Interests of any CFC or CFCHC that is a Direct Foreign Subsidiary of a Loan Party in excess of 65% of all the Voting Equity Interests of such CFC or CFCHC, (b) any Voting Equity Interests of any CFC or CFCHC that is not a Direct Foreign Subsidiary of a Loan Party, (c) the Equity Interests of a Subsidiary that is not a wholly-
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owned Subsidiary the pledge of which would violate a contractual obligation to the owners of the other Equity Interests of such Subsidiary (other than any such owners that are the Company or Affiliates of the Company) that is binding on or relating to such Equity Interests, or the applicable organizational documents, joint venture agreement or shareholders’ agreement of such Subsidiary, and (d) Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiaries. Notwithstanding the foregoing, no Voting Equity Interests or other Equity Interests of any Borrower or any other Loan Party hereto on the Closing Date shall constitute Excluded Equity Interests.
“Excluded Subsidiary” means (a) each Immaterial Subsidiary, (b)(i) any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code (a “CFC”), (ii) any Subsidiary that owns no material assets other than the Equity Interests or indebtedness of one or more CFCs and/or one or more CFCHCs (a “CFCHC”) and (iii) any direct or indirect Subsidiary of any CFC or CFCHC and (c) any Unrestricted Subsidiary; provided, however, that, notwithstanding the foregoing, neither any Borrower nor any other Loan Party party hereto on the Closing Date shall be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap 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 Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party or the grant of such Lien becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. or Canadian federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Revolving Credit Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Revolving Credit Commitment (other than pursuant to an assignment request by the Borrower Agent under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Executive Order” means Executive Order No. 13224 of September 23, 2001, entitled “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.”
“Existing Agreement” means that certain Fifth Amended and Restated Credit Agreement dated as of November 2, 2020, among the Borrowers, JPMorgan Chase Bank, N.A. as administrative agent, and a syndicate of lenders, as amended through the Closing Date.
“Extraordinary Expenses” means all costs, expenses, liabilities or advances that Administrative Agent may incur or make during a Default or Event of Default, or during the pendency of an proceeding of any Loan Party under any Debtor Relief Laws, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other
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proceeding (whether instituted by or against Administrative Agent, any Lender, any Loan Party, any representative of creditors of a Loan Party or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Administrative Agent’s Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other claims; (c) the exercise, protection or enforcement of any rights or remedies of Administrative Agent in, or the monitoring of, any proceeding applicable to any Loan Party under any Debtor Relief Laws; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any enforcement action; (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; and (g) Protective Advances. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Loan Party or independent contractors in liquidating any Collateral, and travel expenses.
“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) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Facility Termination Date” means the date as of which Payment in Full has occurred.
“Fair Market Value” means, with respect to any asset or any group of assets, as of any date of determination, the value of the consideration obtainable in a sale of such assets at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time giving regard to the nature and characteristics of such asset.
“FCPA” means the U.S. Foreign Corrupt Practices Act.
“Federal Funds Rate” means, for any day, the rate per annum (but in no event, less than 0%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to BMO on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means the letter agreement, dated as of the Closing Date among the Borrowers and the Administrative Agent.
“Field Exam” means any visit and inspection of the properties, assets and records of any Loan Party during the term of this Agreement, which shall include access to such properties, assets and records sufficient to permit the Administrative Agent or its representatives to examine, audit and make extracts from any Loan Party’s books and records, make examinations and audits of any Loan Party’s other financial matters and Collateral as Administrative Agent deems appropriate in its Credit Judgment, and discussions with its officers, employees, agents, advisors and independent accountants regarding such Loan Party’s business, financial condition, assets, prospects and results of operations.
“Field Exam Trigger Event” means Availability is less than the greater of (a) 15% of the Aggregate Revolving Credit Commitments at such time and (b) $15,000,000.
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“First Amendment Effective Date” means October [__], 2022.
“Fixed Charge Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs and is continuing or (ii) Availability is less than the greater of (x) 15% of the Aggregate Revolving Credit Commitments at such time and (y) $15,000,000 and (b) continuing until the date that during the previous thirty (30) consecutive days, (i) no Event of Default has existed and (ii) Availability has been greater than the greater of (x) 15% of the Aggregate Revolving Credit Commitments at such time and (y) $15,000,000 at all times during such period.
“Floor” means 0.00%.
“FLSA” means the Fair Labor Standards Act of 1938.
“Foreign Benefit Law” means any law or regulation, other than United States law, governing or applicable to any employee benefit plan, program, scheme or arrangement that is not subject to United States law.
“Foreign Government Scheme or Arrangement” has the meaning specified in Section 6.12(e).
“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“Foreign Plan” has the meaning specified in Section 6.12(e).
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof, (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders and (c) with respect to the Administrative Agent, such Defaulting Lender’s Applicable Percentage of Protective Advances other than Protective Advances as to which such Defaulting Lexxxx’s participation obligation has been reallocated to other Revolving Credit Lenders.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“Governmental Authority” means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or
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indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor” means Matrix Service International, Matrix International Engineering, Matrix Applied, MSI, Matrix PDM, Matrix PDM Canada, Matrix Delaware, Matrix SME Delaware and each other Person identified as a “Guarantor” on the signature page hereto and each other Person who executes or becomes a party to this Agreement as a guarantor pursuant to Article XII or otherwise executes and delivers a guaranty agreement acceptable to the Administrative Agent guaranteeing any of the Obligations.
“Guarantor Payment” has the meaning specified in Section 2.15(c).
“Guaranty” means the guaranty to be delivered by the initial Guarantors on the Closing Date pursuant to Article XII, or otherwise by executing and delivering a guaranty agreement acceptable to the Administrative Agent guaranteeing any of the Obligations.
“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.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“Immaterial Subsidiary” means any Restricted Subsidiary (other than any Borrower) the gross revenue or total assets of which accounts for not more than (i) 2.5% of the consolidated gross revenues (after intercompany eliminations) of the Company and the Restricted Subsidiaries and (ii) 2.5% of Consolidated Total Assets (after intercompany eliminations), in each case, as of the last day of the most recently completed fiscal quarter as reflected on the financial statements for such quarter. If the Restricted Subsidiaries that constitute Immaterial Subsidiaries pursuant to the previous sentence account for, in the aggregate, more than (i) 2.5% of such consolidated gross revenues (after intercompany eliminations) or (ii) 2.5% of Consolidated Total Assets (after intercompany eliminations), each as described in the previous sentence, then the term “Immaterial Subsidiary” shall exclude each such Restricted Subsidiary (starting with the Restricted Subsidiary that accounts for the most consolidated gross revenues or Consolidated Total Assets and then in descending order) necessary to limit the Immaterial Subsidiaries as a group to the lesser of 2.5% of the consolidated gross revenues and 2.5% of Consolidated Total Assets, each as described in the previous sentence. As of the Closing Date, each of Matrix International Holding Company, Ltd., a private company formed under the laws of England and Wales, Mobile Aquatic Solutions, Inc., an Oklahoma corporation, DEVCO USA, LLC, an Oklahoma limited liability company, and River Consulting, LLC, a Louisiana limited liability company constitutes the only Immaterial Subsidiaries.
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“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments or upon which interest is customarily paid;
(b)all direct or contingent obligations of such Person arising under or in respect of letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and other financial products and services (including treasury management and commercial credit card, merchant card and purchase or procurement card services and including all Bonding Obligations);
(c)net obligations of such Person under any Swap Contract;
(d)all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable arising in the Ordinary Course of Business not more than sixty (60) days past due);
(e)indebtedness secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)obligations under Capital Leases and Synthetic Lease Obligations of such Person;
(g)all obligations of such Person with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; and
(h)all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, to the extent such Indebtedness is recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Insolvency Event” means, with respect to any Person:
(a)the commencement of: (i) a voluntary case by such Person under the Bankruptcy Code or (ii) the seeking of relief by such Person under other Debtor Relief Laws;
(b)the commencement of an involuntary case or proceeding against such Person under the Bankruptcy Code or other Debtor Relief Laws and the petition or other filing is not controverted or dismissed within sixty (60) days after commencement of the case or proceeding;
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(c)a custodian (as defined in the Bankruptcy Code or equal term under any other Debtor Relief Law, including a receiver, interim receiver, receiver manager, trustee or monitor) is appointed for, or takes charge of, all or substantially all of the property of such Person;
(d)such Person commences (including by way of applying for or consenting to the appointment of, or the taking charge by, a rehabilitator, receiver, interim receiver, custodian, trustee, monitor, conservator or liquidator (or any equal term under any other Debtor Relief Laws) (collectively, a “conservator”) of such Person or all or any substantial portion of its property) any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation, rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating to such Person;
(e)such Person is adjudicated by a court of competent jurisdiction to be insolvent or bankrupt;
(f)any order of relief or other order approving any such case or proceeding referred to in clauses (a) or (b) above is entered;
(g)such Person suffers any appointment of any conservator or the like for it or any substantial part of its property that continues undischarged or unstayed for a period of sixty (60) days; or
(h)such Person makes a compromise, arrangement or assignment for the benefit of creditors or generally does not pay its debts as such debts become due.
“Intellectual Property” means all past, present and future: trade secrets, know-how and other proprietary information; trademarks, uniform resource locations (URLs), internet domain names, service marks, sound marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter be issued throughout the world and all tangible property embodying the copyrights, unpatented inventions (whether or not patentable); patent applications and patents; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing.
“Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan or SOFR Loan, (i) the last day of each Interest Period applicable to such Eurocurrency Rate Loan or SOFR Loan; provided that if any Interest Period for a Eurocurrency Rate Loan or SOFR Loan is greater than three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates, (ii) any date that such Loan is prepaid or converted, in whole or in part, and (iii) the Maturity Date; and (b) as to any Base Rate Loan (including a Swing Line Loan) or Canadian Prime Rate Loan, (i) the first day of each month with respect to interest accrued through the last day of the immediately preceding month, (ii) any date that such Loan is prepaid or converted, in whole or in part, and (iii) the Maturity Date; provided, further, that interest accruing at the Default Rate shall be payable from time to time upon demand of the Administrative Agent.
“Interest Period” means, as to each Eurocurrency Rate Loan or SOFR Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or the date such Eurocurrency Rate Loan or SOFR Loan is disbursed, converted to or continued as an Eurocurrency Ratea SOFR Loan and ending, in each case, on the date one (1) month or three (3) months thereafter, as selected by the Borrower Agent in its Committed Loan Notice; provided that:
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(a)any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)no Interest Period shall extend beyond the Maturity Date.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) an Acquisition with respect to another Person or (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person. For purposes of compliance with Section 8.03, the amount of any Investment (i) shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person), (ii) if made by the transfer or exchange of property other than cash, shall be deemed to be the original principal or capital amount equal to the Fair Market Value of such property at the time of such transfer or exchange and (iii) if made in the form of a Guaranty or acquisition or assumption of Indebtedness, shall be deemed the maximum principal amount of such Indebtedness or maximum value of the obligation guaranteed when made, as applicable.
“IP Rights” rights of any Person to use any Intellectual Property.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and any Borrower (or any Subsidiary) or in favor the Letter of Credit Issuer and relating to any such Letter of Credit.
“Joint Venture” means a Person (other than a Subsidiary, natural person or Governmental Authority) that is (a) formed to be or represents a joint venture between the Company or one of its Subsidiaries and other Person(s) (regardless of the type of entity used), and (b) formed for the purpose of bidding for, undertaking or handling specific projects or for the purpose of acquiring Equity Interests of any other Person.
“JPM Credit Card Cash Collateral Account” means that deposit account in the name of Borrower held at JPMorgan Chase Bank, N.A., that contains no more than $2,600,000 to secure commercial credit card services and automated clearinghouse services.
“Judgement Currency” has the meaning specified in Section 11.22.
“Laws” means, collectively, all international, foreign, federal, state and local statutes (including Canadian provincial and federal statutes), treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Letter of Credit Issuer and the Swing Line Lender.
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“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lexxxx’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower Agent and the Administrative Agent.
“Letter of Credit” means (a) any standby or documentary letter of credit issued by a Letter of Credit Issuer or (b) any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support, in any case, issued by the Administrative Agent or an Letter of Credit Issuer pursuant to this Agreement for the benefit of a Borrower (or any other Loan Party or Domestic Subsidiary thereof as to which all “know your customer” or other similar requirements have been satisfied). Letters of Credit may be issued in Dollars or if agreed to by the Administrative Agent at its sole option, also in either Canadian Dollars or Australian Dollars.
“Letter of Credit Advance” means each Revolving Credit Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Applicable Revolving Credit Percentage. All Letter of Credit Advances shall be denominated in Dollars, unless the underlying Letter of Credit is denominated in Canadian Dollars (in which case, any Letter of Credit Advance for any such Letter of Credit shall be denominated in Canadian Dollars) or Australian Dollars (in which case, any Letter of Credit Advance for any such Letter of Credit shall be denominated in Australian Dollars).
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the Letter of Credit Issuer.
“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. All Letter of Credit Borrowings shall be denominated in Dollars, unless the underlying Letter of Credit is denominated in (i) Canadian Dollars (in which case, any Letter of Credit Borrowing for any such Letter of Credit shall be denominated in Canadian Dollars) or (ii) Australian Dollars (in which case, any Letter of Credit Borrowing for any such Letter of Credit shall be denominated in the Dollar Equivalent of such Australian Dollar amount).
“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date (or, if such day is not a Business Day, the preceding Business Day).
“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“Letter of Credit Fees” means, collectively or individually as the context may indicate, the fees with respect to Letters of Credit described in Section 2.09(b).
“Letter of Credit Issuer” means each of BMO, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. At any time there is more than one Letter of Credit Issuer, all singular references to the Letter of Credit Issuer shall mean any Letter of Credit Issuer, either Letter of Credit Issuer, each Letter of Credit Issuer, the Letter of Credit Issuer that has issued the applicable Letter of Credit, or both Letter of Credit Issuers, as the context may require.
“Letter of Credit Obligations” means, as at any date of determination, (a) the aggregate undrawn amount of all outstanding Letters of Credit, plus (b) the aggregate of all Unreimbursed Amounts, including all Letter of Credit Borrowings, plus (c) the aggregate amount of all accrued and unpaid Letter of Credit Fees. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
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“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Dollar Equivalent of $75,000,000 and (b) the Dollar Equivalent of the Aggregate Revolving Credit Commitments. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.
“LIBOR” means ICE LIBOR, as defined in the definition of LIBOR Rate.
“LIBOR Rate” means for any Interest Period with respect to a LIBOR Loan, the rate per annum equal to the ICE Benchmark Administration (or the successor thereto if the ICE Benchmark Administration is no longer making the LIBOR Rate available) LIBOR Rate (“ICE LIBOR”), as published by Reuters (or such other commercially available source providing quotations of ICE LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided, that if the LIBOR Rate as so determined would be less than the Floor, the LIBOR Rate will be deemed to be the Floor for purposes of this Agreement.
“LIBOR Loan” means a Revolving Credit Loan that bears interest a rate based on clause (a) of the definition of “LIBOR Rate.”
“License” means any license or agreement under which a Loan Party is granted IP Rights in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of assets or property or any other conduct of its business.
“Licensor” means any Person from whom a Loan Party obtains IP Rights.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest, or any preference, priority or other security agreement or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Lien Waiver” means an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which (a) for any material Collateral located on leased premises or owned premises subject to a mortgage, the lessor or mortgagee, as applicable, agrees to, among other things, waive or subordinate any Lien it may have on the Collateral and permit the Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the Collateral to the Administrative Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Administrative Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Administrative Agent upon request; and (d) for any Collateral subject to a Licensor’s IP Rights, the Licensor grants to the Administrative Agent the right, vis-à-vis such Licensor, to enforce the Administrative Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License.
“Line Reserve” means such reserves and adjustments thereto as the Administrative Agent from time to time determines in its Credit Judgment as being appropriate, including (a) the Rent and Charges Reserve; (b) the Credit Product Reserve; (c) Wage Claim Reserves; (d) the aggregate amount of liabilities at any time secured by Liens upon Collateral that are senior to the Administrative Agent’s Liens; (e) sums that any Loan Party may be required to pay under any Section of this Agreement or any other Loan Document (including taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay and (f) amounts for which claims may be reasonably expected to be asserted against the Collateral, the Administrative Agent or the Lenders.
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“Loan” means an extension of credit under Article II in the form of a Revolving Credit Loan, a Protective Advance or a Swing Line Loan.
“Loan Account” has the meaning assigned to such term in Section 2.11(a).
“Loan Documents” means this Agreement, each Revolving Credit Loan Note, each Security Instrument, each Committed Loan Notice, Swing Line Loan Notice, each Issuer Document, each Borrowing Base Certificate, each Compliance Certificate, the Fee Letter, any agreement creating or perfecting rights in Cash Collateral securing any Obligation hereunder and all other instruments and documents heretofore or hereafter executed or delivered to or in favor of any Lender or the Administrative Agent in connection with the Loans made and transactions contemplated by this Agreement, but excluding, for the avoidance of doubt, Credit Product Arrangements.
“Loan Obligations” means all Obligations other than amounts (including fees) owing by any Loan Party pursuant to any Credit Product Arrangements.
“Loan Parties” means the Borrowers and each Guarantor.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent), prospects or condition (financial or otherwise) of either (i) the Borrowers, taken as a whole or (ii) the Company and its Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party or on the ability of the Administrative Agent to collect any Obligation or realize upon any material portion of the Collateral.
“Material Contract” means any agreement or arrangement to which a Loan Party or Restricted Subsidiary is party (other than the Loan Documents) (a) that is deemed to be a material contract under any securities laws applicable to such Loan Party, including the Securities Act of 1933; (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; (c) that relates to Subordinated Debt or to other Indebtedness in an aggregate Dollar Equivalent principal amount of $1,000,000 or more or (d) that certain General Indemnity Agreement dated February 17, 2016 by and among Matrix and certain of Matrix’s subsidiaries party thereto in favor of Federal Insurance Company, Pacific Indemnity Company and each other “Surety” specified therein (the “Chubb Indemnity Agreement”) along with any other similar or replacement indemnity agreement in favor of a surety (collectively, the “General Indemnity Agreement”).
“Material License” has the meaning assigned to such term in Section 7.15.
“Material Third-Party Agreement” has the meaning assigned to such term in Section 7.17(a).
“Matrix” means Matrix Service Company, a Delaware corporation.
“Matrix Applied” means Matrix Applied Technologies, Inc., a Delaware corporation.
“Matrix Delaware” means Matrix North American Construction, LLC, a Delaware limited liability company.
“Matrix International Engineering” means Matrix International Engineering, LLP, a Delaware limited liability partnership.
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“Matrix North America” means Matrix North American Construction Ltd., an Ontario corporation.
“Matrix Oklahoma” means Matrix North American Construction, Inc., an Oklahoma corporation.
“Matrix PDM” means Matrix PDM, LLC, an Oklahoma limited liability company.
“Matrix PDM Canada” means Matrix PDM Engineering LTD., a Nova Scotia company limited by shares.
“Matrix PDM Engineering” means Matrix PDM Engineering, Inc., a Delaware corporation
“Matrix Service” means Matrix Service Inc., an Oklahoma corporation.
“Matrix Service International” means Matrix Service International, LLC, a Delaware limited liability company.
“Matrix SME Canada” means Matrix SME Canada ULC, a Nova Scotia unlimited company.
“Matrix SME Delaware” means Matrix SME Canada, Inc. a Delaware corporation.
“Matrix ULC” means Matrix Service Canada ULC, an Alberta unlimited liability corporation.
“Maturity Date” means September 9, 2026.
“Maximum Borrowing Amount” means the lesser of (A) the Aggregate Revolving Credit Commitments minus the Line Reserves, if any and (B) the Borrowing Base.
“Measurement Period” means, at any date of determination, the most recently completed trailing twelve month period of the Company and its Restricted Subsidiaries for which financial statements have or should have been delivered in accordance with Section 7.01(a) or 7.01(b).
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or Deposit Account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time plus 105% of the Fronting Exposure of the Administrative Agent with respect to Protective Advances outstanding at such time, (b) with respect to Cash Collateral consisting of cash or Deposit Account balances provided in accordance with the provisions of Section 2.16(a)(i) or 2.16(a)(ii), an amount equal to 105% of the Outstanding Amount of all Letter of Credit Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the Letter of Credit Issuer in their sole discretion.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Monthly Exchange Rate” means the monthly average exchange rate as published by a reputable source chosen from time to time by the Administrative Agent and as determined by the Administrative Agent.
“Mortgage Related Documents” means, with respect to any Real Property subject to a Mortgage, the following, in form and substance satisfactory to the Administrative Agent and received by the Administrative Agent for review at least 15 days prior to the effective date of the Mortgage: (a) an ALTA mortgagee title policy (or binder therefor) covering the Administrative Agent’s interest under the Mortgage, in a form and amount and by an insurer acceptable to the Administrative Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as the Administrative Agent may require with respect to other Persons
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having an interest in the Real Property; (c) an ALTA Survey by a licensed surveyor acceptable to the Administrative Agent; (d) a life-of-loan flood hazard determination and, if the Real Property is located in a flood plain, an acknowledged notice to borrower and flood insurance in an amount, on terms, including endorsements, and by an insurer, in each case, acceptable to the Administrative Agent; (e) a current appraisal of the Real Property, prepared by an appraiser acceptable to the Administrative Agent, and in form and substance satisfactory to Required Lenders; (f) an environmental assessment, prepared by environmental engineers acceptable to the Administrative Agent, and accompanied by such reports, certificates, studies or data as the Administrative Agent may reasonably require, which shall all be in form and substance satisfactory to Required Lenders; and (g) an environmental indemnity agreement and such other documents, instruments or agreements as the Administrative Agent may reasonably require with respect to any environmental risks regarding the Real Property.
“Mortgaged Property” means Real Property required from time to time to be subject to a Mortgage pursuant to the terms of the Loan Documents.
“Mortgages” means the mortgages, leasehold mortgages, deeds of trust, leasehold deeds of trust or deeds to secure debt executed by a Loan Party on or about the Closing Date, or from time to time thereafter as may be required under the Loan Documents, in favor of the Administrative Agent, for the benefit of the Secured Parties, by which such Loan Party has granted to the Administrative Agent, as security for the Obligations, a Lien upon the Mortgaged Property described therein, together with all mortgages, deeds of trust and comparable documents now or at any time hereafter securing the whole or any part of the Obligations.
“MSI” means MSI Federal Contracting, LLC, a Delaware limited liability company.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions, or to which any Loan Party or any ERISA Affiliate has any liability (contingent or otherwise).
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Cash Proceeds” means
(a)with respect to the Disposition of any asset of any Loan Party or any Restricted Subsidiary, the excess, if any, of (i) the sum of the cash and cash equivalents received in connection with such Disposition (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with the Disposition thereof (other than Indebtedness under the Loan Documents and Indebtedness owing to the Company or any Restricted Subsidiary), (B) the reasonable out-of-pocket expenses incurred by such Loan Party or any Subsidiary in connection with such Disposition, including any brokerage commissions, underwriting fees and discount, legal fees, finder’s fees and other similar fees and commissions, (C) taxes paid or reasonably estimated to be payable by the Loan Party or any Restricted Subsidiary in connection with the relevant Disposition, (D) the amount of any reasonable reserve required to be established in accordance with GAAP against liabilities (other than taxes deducted pursuant to clause (C) above) to the extent such reserves are (x) associated with the assets that are the object of such Disposition and (y) retained by such Loan Party or applicable Restricted Subsidiary, and (E) the amount of any reasonable reserve for purchase price adjustments and retained fixed liabilities reasonably expected to be payable by such Loan Party or applicable Restricted Subsidiary in connection therewith to the extent such reserves are (1) associated with the assets that are the object of such Disposition and (2) retained by such Loan Party or applicable Restricted Subsidiary; provided that the amount of any subsequent reduction of any reserve provided for in clause (D) or (E) above (other than in connection with a payment in respect of such liability) shall (X) be deemed to be Net Cash Proceeds of
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such Disposition occurring on the date of such reduction, and (Y) immediately be applied to the prepayment of Loans in accordance with Section 2.06(c); and
(b)with respect to any issuance of Indebtedness or Equity Interests by any Loan Party or any Restricted Subsidiary, the excess, if any, of (i) the sum of the cash and cash equivalents received in connection with such issuance over (ii) the sum of (A) the reasonable out-of-pocket expenses incurred by such Loan Party or any Restricted Subsidiary in connection with such issuance, including any brokerage commissions, underwriting fees and discount, legal fees, and other similar fees and commissions and (B) taxes paid or payable to the applicable taxing authorities by the Loan Party or any Restricted Subsidiary in connection with and at the time of such issuance.
“NOLV” means, with respect to the Borrowers’ Equipment, the net orderly liquidation value of such Equipment, (a percentage of the Cost of such Equipment) that might be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from time to time by reference to the most recent appraisal received by the Administrative Agent conducted by an independent appraiser engaged by the Administrative Agent; provided that on the first day of each calendar month (commencing with November 1, 2021), the NOLV that is otherwise determined above for any particular Equipment shall be reduced on a straight-line basis, which reduction shall be calculated by (1) first dividing such NOLV by 84 and (2) next multiplying that quotient by the number of full calendar months that have been completed after the Closing Date.
“Non-Consenting Lender” has the meaning assigned to such term in Section 11.01.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
“NPL” means the National Priorities List pursuant to CERCLA, as updated from time to time.
“Obligations” means (a) all amounts owing by any Loan Party to the Administrative Agent, any Lender or any other Secured Party pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit, including all Letter of Credit Obligations, and including all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any proceeding under any Debtor Relief Law relating to any Loan Party, or would accrue but for such filing or commencement, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), reimbursement obligations, indemnification and reimbursement payments, fees, costs and expenses (including all fees, costs and expenses of counsel to the Administrative Agent) incurred in connection with this Agreement or any other Loan Document, whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof and (b) Credit Product Obligations; provided that Obligations of a Loan Party shall not include its Excluded Swap Obligations.
“OFAC” means the United States Department of Treasury Office of Foreign Assets Control.
“OFAC SDN List” means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC.
“Ordinary Course of Business” means the ordinary course of business of the Company and its Subsidiaries, consistent with past practices and undertaken in good faith and not to circumvent any provision of this Agreement.
“Organization Documents” means, (a) with respect to any corporation or unlimited liability company, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability
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company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity and (d) with respect to any of the foregoing, each shareholder agreement, member agreement, agreement among partners or limited partners, stock designation, equity holder agreement or other agreement among or affecting rights of holders of Equity Interests issued by any Loan Party.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 11.13).
“Outstanding Amount” means (a) with respect to Revolving Credit Loans, Protective Advances and Swing Line Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any Borrowings and any prepayments or repayments of Revolving Credit Loans, Protective Advances or Swing Line Loans occurring on such date; and (b) with respect to any Letter of Credit Obligations on any date, (i) the Dollar Equivalent amount of the aggregate outstanding amount of such Letter of Credit Obligations on such date after giving effect to any Letter of Credit Extension occurring on such date plus and any other changes in the aggregate amount of the Letter of Credit Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts and all Letter of Credit Borrowings on such date.
“Overadvance” has the meaning given to such term in Section 2.01(c)(i)(A).
“Overadvance Loan” means a Base Rate Loan made when an Overadvance exists or is caused by the funding thereof.
“Overnight Rate” means, for any day and from time to time as in effect, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation and (b) with respect to any amount denominated in Canadian Dollars, an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
“Participant” has the meaning assigned to such term in clause (d) of Section 11.06.
“Participant Register” has the meaning assigned to such term in clause (d) of Section 11.06.
“Patent Security Agreement” means any patent security agreement pursuant to which a Loan Party assigns to Administrative Agent, for the benefit of the Secured Parties, such Person’s interests in its patents, as security for the Obligations.
“PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
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2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“Payment Conditions” means, with respect to any Specified Transaction, the satisfaction of the following conditions:
(a)as of the date of any such Specified Transaction and immediately after giving effect thereto, no Default or Event of Default has occurred and is continuing;
(b)Availability (after giving Pro Forma Effect to such Specified Transaction) during the thirty (30) consecutive day period ending on and including the date of such Specified Transaction shall be not less than, the greater of (A) 20% of the Aggregate Revolving Credit Commitments and (B) $20,000,000, as of such date;
(c)the Consolidated Fixed Charge Coverage Ratio as of the end of the most recently ended Measurement Period prior to the making of such Specified Transaction, calculated on a Pro Forma Basis, shall be equal to or greater than 1.00 to 1.00; provided that, the Consolidated Fixed Charge Coverage Ratio test described in this clause (c) shall not apply if the Availability (calculated in order to give Pro Forma Effect to such Specified Transaction) during the thirty (30) consecutive day period ending on and including the date of such Specified Transaction is not less than (i) in the case of a Specified Investment, the greater of (A) 22.5% of the Aggregate Revolving Credit Commitments and (B) $22,500,000 or (ii) in the case of a Specified Debt Payment or a Specified Restricted Payment, the greater of (A) 27.5% of the Aggregate Revolving Credit Commitments and (B) $27,500,000, in each case, as of such date; and
(d)the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower Agent certifying as to compliance with the preceding clauses and demonstrating (in reasonable detail) the calculations required thereby.
“Payment in Full” means (a) the indefeasible payment in full in cash of all Obligations, together with all accrued and unpaid interest and fees thereon, other than Letter of Credit Obligations that have been fully Cash Collateralized in an amount equal to 105% of the amount thereof or as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the Letter of Credit Issuer shall have been made, (b) the Revolving Credit Commitments shall have terminated or expired, (c) the obligations and liabilities of each Loan Party and its Affiliates under all Credit Product Arrangements shall have been fully, finally and irrevocably paid and satisfied in full and the Credit Product Arrangements shall have expired or been terminated, or other arrangements satisfactory to the applicable Credit Product Providers shall have been made with respect thereto, and (d) all claims of the Loan Parties against any Secured Party arising on or before the payment date in connection with the Loan Documents or any Credit Product Arrangements, as applicable, shall have been released on terms acceptable to the Administrative Agent or the applicable Credit Product Providers; provided that notwithstanding full payment or Cash Collateralization of the Obligations as provided herein, the Administrative Agent shall not be required to terminate its Liens in any Collateral unless, with respect to any damages the Administrative Agent may incur as a result of the dishonor or return of Payment Items applied to Obligations, Administrative Agent receives (i) a written agreement, executed by Xxxxxxxxx and any Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Administrative Agent and Lenders from any such damages; or (ii) such Cash Collateral as the Administrative Agent, in its discretion, deems necessary to protect against any such damages.
“Payment Item” means each check, draft or other item of payment payable to a Borrower, including those constituting proceeds of any Collateral.
“PBA” means the Pension Benefits Act (Ontario), as well as any other applicable minimum pension benefits standards legislation of provincial or federal jurisdiction in Canada.
“PBGC” means the Pension Benefit Guaranty Corporation.
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“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Loan Party and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Permitted Acquisition” means any Acquisition by a Loan Party with respect to which:
(a)the Person to be (or whose assets are to be) acquired does not oppose such Acquisition and the line or lines of business of the Person to be acquired constitute Core Businesses and had positive EBITDA for the 12 month period most recently ended;
(b)the cost of such Acquisition (including cash and other property (other than Equity Interests or options to acquire Equity Interests of any Loan Party) given as consideration, any Indebtedness incurred, assumed or acquired by any Loan Party or any Restricted Subsidiary in connection with such Acquisition, and all additional purchase price amounts in the form of earnouts and other contingent obligations calculated at the maximum potential amount thereof) does not exceed the Dollar Equivalent of $10,000,000 individually and the Dollar Equivalent of $25,000,000 when aggregated with all other Acquisitions consummated during the term of this Agreement;
(c)after giving effect to such Acquisition on a Pro Forma Basis and the costs related thereto (including cash and other property (other than Equity Interests or options to acquire Equity Interests of any Loan Party) given as consideration, any Indebtedness incurred, assumed or acquired by any Loan Party or any Restricted Subsidiary in connection with such Acquisition, all additional purchase price amounts in the form of earnouts and other contingent obligation calculated at the maximum potential amount thereof, and all fees expenses and transaction costs incurred in connection therewith), the Payment Conditions shall have been met with respect thereto;
(d)the Borrower Agent shall have furnished to the Administrative Agent at least five (5) Business Days prior to the date on which any such Acquisition is to be consummated or such shorter time as Administrative Agent may allow, a certificate of a Responsible Officer of the Borrower Agent, in form and substance reasonably satisfactory to the Administrative Agent, (i) certifying that all of the requirements set forth above will be satisfied on or prior to the consummation of such Acquisition and (ii) a reasonably detailed calculation of item (b) above (and such certificate shall be updated as necessary to make it accurate as of the date the Acquisition is consummated); and
(e)the Borrower Agent shall have furnished the Administrative Agent with ten (10) days’ prior written notice of such intended Acquisition and shall have furnished the Administrative Agent with a current draft of the applicable acquisition documents (and final copies thereof as and when executed), and to the extent available, appropriate financial statements of the Person which is the subject of such Acquisition, pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income statements by month for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, to the extent available, such other information as the Administrative Agent may reasonably request.
“Permitted Liens” has the meaning specified in Section 8.02.
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“Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in Section 7.02.
“PPSA” means the Personal Property Security Act (Ontario) (and other equivalent personal property security legislation in any other applicable Canadian province or territory) and the regulations thereunder, as from time to time in effect, provided, however, if attachment, perfection or priority of any Secured Party’s security interest in any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than Ontario, with respect to such Collateral, PPSA shall mean those personal property security laws in such other jurisdiction of Canada (including the Civil Code of Québec and the regulation respecting the register of personal and movable real rights thereunder) for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.
“Priority Swap Obligations” means Credit Product Obligations under Swap Contracts (a) owing to BMO or its Affiliates (so long as BMO (in its discretion) shall have established a Credit Product Reserve with respect thereto) or (b) owing to any other Credit Product Provider and expressly identified as “Priority Swap Obligations” in a Credit Product Notice from the Borrower Agent and such Credit Product Provider to the Administrative Agent (which at all times shall be subject to a Credit Product Reserve).
“Pro Forma Adjustment” means, for the purposes of calculating Consolidated EBITDA for any Measurement Period, if at any time during such Measurement Period any Borrower or any of its Restricted Subsidiaries shall have made a Permitted Acquisition or Disposition, Consolidated EBITDA for such Measurement Period shall be calculated after giving pro forma effect thereto as if any such Permitted Acquisition or Disposition occurred on the first day of such Measurement Period, including (a) with respect to an any Permitted Acquisition, inclusion of (i) the actual historical results of operation of such acquired Person or line of business during such Measurement Period and (ii) pro forma adjustments arising out of events which are directly attributable to such Permitted Acquisition, are factually supportable, and are expected to have a continuing impact, in each case determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC and acceptable to the Administrative Agent and (b) with respect to any Disposition, exclusion of the actual historical results of operations of the disposed of Person or line of business or assets during such Measurement Period.
“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to compliance with any applicable test, financial ratio or covenant hereunder, that (without duplication):
(a)the Pro Forma Adjustment shall have been made, to the extent applicable;
(b) all Specified Pro Forma Transactions that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made (the period beginning on the first day of such period of measurement and continuing until the date of the consummation of such event, the “Reference Period”) shall be deemed to have occurred as of the first day of the applicable Reference Period; provided that (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Pro Forma Transaction, (A) shall be excluded in the case of a Disposition of all or substantially all Equity Interests in or assets of any Loan Party or its Subsidiaries or any division, product line, or facility used for operations of the Loan Parties or their Subsidiaries, and (B) shall be included in the case of a Permitted Acquisition or Investment described in the definition of Specified Pro Forma Transaction, and (ii) all Indebtedness issued, incurred or assumed as a result of, or to finance, any Specified Pro Forma Transaction or
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permanently repaid in connection with any Specified Pro Forma Transaction during the Reference Period shall be deemed to have been issued, incurred, assumed or permanently repaid at the beginning of such Reference Period (with interest expense of such Person attributable to any Indebtedness for which pro forma effect is being given as provided in preceding clause (ii) that has a floating or formula rate, shall have an implied rate of interest for the applicable Reference Period determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided, that, the foregoing pro forma adjustments may be applied to any such test, financial ratio or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and the definition of Pro Forma Adjustment;
(c)with respect to any calculation of Availability on a pro forma basis (i) for any period or as of any specified time pursuant to any provision hereunder, the determination or calculation of Availability shall be made giving pro forma effect to all funds utilized in connection with the consummation of Specified Transactions as if funded with Loans hereunder on the date of such Specified Transactions and on each date of the period being so tested and (ii) for any Permitted Acquisition, the calculation of consideration paid in connection with such Acquisition shall include all earn-out obligations, if any, in connection therewith, calculated at the maximum potential amount thereof; and
(d)for the purposes of calculating the Consolidated Fixed Charge Coverage Ratio for any Measurement Period on a Pro Forma Basis for determining compliance with the Payment Conditions with respect to any Specified Debt Payment or Specified Restricted Payment, the amount of any proposed Specified Debt Payment and/or any proposed Specified Restricted Payment, together with all other such payments made (or to be simultaneously or contemporaneously made) during such Measurement Period based on compliance with the Payment Conditions, shall be included in the definition of “Consolidated Fixed Charges” for such determination.
Whenever any provision of this Agreement requires the Borrowers to be in compliance on a Pro Forma Basis (or in Pro Forma Compliance) with a specified level of Availability or specified Consolidated Fixed Charge Coverage Ratio in connection with any action to be taken by any Loan Party or any Restricted Subsidiary, the Borrower Agent shall deliver to the Administrative Agent a certificate of a Senior Officer setting forth in reasonable detail the calculations demonstrating such compliance.
“Properly Contested” means with respect to any obligation of a Loan Party, (a) the obligation is subject to a bona fide dispute regarding amount or such Loan Party’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment could not have a Material Adverse Effect, nor result in forfeiture or sale of any assets of a Loan Party; (e) no Lien is imposed on assets of a Loan Party, unless bonded and stayed to the satisfaction of the Administrative Agent; (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review; and (g) no Account related to any Bonding Obligation where such Bonding Obligation is being Properly Contested may be included within the Borrowing Base.
“Protective Advance” has the meaning specified in Section 2.01(c)(ii)(A).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 7.02.
“QFC” has the meaning specified in Section 11.21(b).
“QFC Credit Support” has the meaning specified in Section 11.21(b).
“Qualified Accounts” means any investment or other non-operating account of a Loan Party maintained by or at the Administrative Agent or its Affiliates and except as may be deferred pursuant to
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Schedule 7.21, subject to a Control Agreement in favor of the Administrative Agent; provided that at all times from and after the Closing Date, the Administrative Agent shall have sole dominion and control of the disposition of the amounts so deposited, whether or not during a Dominion Trigger Period.
“Qualified ECP” means any Loan Party with total assets exceeding $10,000,000, or that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Ratable Share” has the meaning specified in Section 2.01(c)(ii)(C).
“Real Property” means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Person, including all easements, rights-of-way, and similar rights appurtenant thereto and all leases, tenancies, and occupancies thereof.
“Recipient” means the Administrative Agent, any Lender, any Letter of Credit Issuer or any other recipient of any payment to be made by or on account of any Obligation of a Loan Party hereunder.
“Refinancing Conditions” means the following conditions for Refinancing Indebtedness: (a) it is in an aggregate principal amount that does not exceed the principal amount of the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended (the “Original Indebtedness”) plus accrued interest and reasonable fees and expenses incurred in connection with such Refinancing Indebtedness; (b) the interest rate applicable to such Refinancing Indebtedness does not exceed the greater of the (i) interest rate applicable to the Original Indebtedness and (ii) the otherwise market rate of interest for such similar Indebtedness to similarly borrowers; (c) it has a final maturity no sooner than and a weighted average life no less than the applicable Original Indebtedness; (d) it contains no mandatory prepayment provisions more favorable to the lenders thereunder than the mandatory prepayment provision under the Original Indebtedness, (e) to the extent the Original Indebtedness is unsecured, such Refinancing Indebtedness shall be unsecured; (f) to the extent the Original Indebtedness is secured by Xxxxx, such Refinancing Indebtedness is either unsecured or is not secured by any Liens that did not secure the Original Indebtedness immediately prior to incurrence of the Refinancing Indebtedness; (g) to the extent that such Original Indebtedness is subject to any Subordinations Provisions, such Refinancing Indebtedness is subject to Subordination Provisions no less favorable to the Administrative Agent and the Lenders than those applicable to the Original Indebtedness immediately prior to incurrence of the Refinancing Indebtedness; (h) no additional Person not obligated, primarily or contingently, on the Original Indebtedness is obligated, primarily or contingently, on such Refinancing Indebtedness; (i) such Refinancing Indebtedness shall be on terms not materially less favorable to the Administrative Agent or the Lenders, and not materially more restrictive to the Loan Parties, than the terms of the Original Indebtedness; and (j) upon giving effect to such Refinancing Indebtedness, no Default or Event of Default exists.
“Refinancing Indebtedness” means the Indebtedness that is the result of any renewal, modification, refinancing, refunding, replacement, or extension of Indebtedness permitted under Section 8.01(b), (f), (g), (h), (p), (q) and (r) as to which the Refinancing Conditions are satisfied; provided that the incurrence of any such Refinancing Indebtedness will be deemed to utilize permitted amounts of Indebtedness, if any, under each clause thereof.
“Register” has the meaning specified in Section 11.06(c).
“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall be independent of the Company as prescribed in the Securities Laws.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
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“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or any successor thereto.
“Rent and Charges Reserve” means the aggregate of (a) all past due rent and other amounts owing by a Borrower to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Borrowing Base Assets or could assert a Lien on any Eligible Borrowing Base Assets; and (b) a reserve at least equal to three months’ rent and other charges that could be payable to any such Person, unless it has executed a Lien Waiver.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“Reporting Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs and is continuing or (ii) Availability is less than the greater of (x) 15% of the Aggregate Revolving Credit Commitments at such time and (y) $15,000,000 and (b) continuing until the date that during the previous thirty (30) consecutive days, (i) no Event of Default has existed and (ii) Availability has been greater than the greater of (x) 15% of the Aggregate Revolving Credit Commitments at such time and (y) $15,000,000 at all times during such period; provided, however, that a Reporting Trigger Period may not be cured as contemplated by clause (b) more than two (2) times in any fiscal year.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice, (b) with respect to an Letter of Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders holding (and from and after the Administrative Agent’s written election to activate this parenthetical, at any time there are two (2) or more Lenders, at least two (2) non-Affiliate Lenders holding) more than 50% of the Total Credit Exposure of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Required Supermajority Lenders” means, as of any date of determination, Lenders holding (and from and after the Administrative Agent’s written election to activate this parenthetical, at any time there are two (2) or more Lenders, at least two (2) non-Affiliate Lenders holding) at least 66⅔% of the Total Credit Exposure of all Lender. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Supermajority Lenders at any time.
“Rescindable Amount” has the meaning specified in Section 2.12(b)(ii).
“Reserve” means any reserve constituting all or any portion of the Availability Reserve or the Line Reserve.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, with respect to each Loan Party, the chief executive officer, president, chief financial officer, treasurer, controller or assistant treasurer or any vice president of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Company or any Restricted Subsidiary, (ii) any payment (whether in cash, securities or other property), including any sinking fund or
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similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Company’s or any Restricted Subsidiary’s stockholders, partners or members (or the equivalent Person thereof) or (iii) any distribution, advance or repayment of Indebtedness to or for the account of a holder of Equity Interests of the Company or its Affiliates.
“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of xxx Eurocurrency Rate Loan or SOFR Loan denominated in Canadian Dollars, (ii) each date of a continuation of an Eurocurrency Ratea SOFR Loan denominated in Canadian Dollars pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in Canadian Dollars, (ii) each date of any payment by the Letter of Credit Issuer under any Letter of Credit denominated in Canadian Dollars, and (iii) such additional dates as the Administrative Agent or the Letter of Credit Issuer shall determine or the Required Lenders shall require.
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans and SOFR Loans, having the same Interest Period, made pursuant to Section 2.01(a) or (c).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(a), (b) purchase participations in Letter of Credit Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Xxxxxx’s participation in Letter of Credit Obligations, Swing Line Loans and Protective Advances at such time.
“Revolving Credit Facility” means the facility described in Sections 2.01(a), 2.03 and 2.04 providing for Revolving Credit Loans, Letters of Credit and Swing Line Loans to or for the benefit of the Borrowers by the Revolving Credit Lenders, Letter of Credit Issuer and Swing Line Lender, as the case may be, in the maximum aggregate principal amount at any time outstanding of the Dollar Equivalent of $100,000,00090,000,000, as adjusted from time to time pursuant to the terms of this Agreement.
“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or, following termination of the Revolving Credit Commitments, has any Revolving Credit Exposure.
“Revolving Credit Loan” has the meaning specified in Section 2.01(a).
“Revolving Credit Loan Note” means a promissory note made by the Borrowers in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of Exhibit A.
“Revolving Credit Termination Date” means the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07(a), and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the Letter of Credit Issuer to make Letter of Credit Extensions pursuant to Section 9.02.
“Rolling Stock” means all trucks, trailers, tractors, service vehicles, vans, pick-up trucks, forklifts, wheel loaders and other mobile equipment and other vehicles, wherever located.
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“Royalties” means all royalties, fees, expense reimbursement and other amounts payable by a Loan Party under a License.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The XxXxxx-Xxxx Companies, Inc. and any successor thereto.
“Same Day Funds” means immediately available funds.
“Sanctioned Person” means, at any time, that is (a) the target of Sanctions; (b) any Person listed in the annex to, or otherwise subject to the provisions of, the Executive Order or any Sanctions-related list of designated Persons maintained by OFAC (including the OFAC SDN List), the United States Department of State or the Government of Canada (including, without limitation, OFAC, the U.S. Department of Commerce, United States Department of State or U.S. Department of Defense), the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority, (c) any Person located, organized or resident in a Designated Jurisdiction or (d) any Person directly or indirectly 25% or more owned or controlled, individually or in the aggregate, by any Person described in clauses (a) or (b) above.
“Sanctions” means all economic or financial sanctions, sectoral sanctions, secondary sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the United States government (including those administered by OFAC the U.S. Department of Commerce, United States Department of State or U.S. Department of Defense), or (b) the Government of Canada, the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority with jurisdiction over any Loan Party or any of their respective Subsidiaries or Affiliates.
“Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Party” means (a) each Lender, (b) each Credit Product Provider, (c) the Administrative Agent, (d) the Letter of Credit Issuer, (e) the Arranger and (f) the successors and assigns of each of the foregoing.
“Secured Party Expenses” has the meaning set forth in Section 11.04(a).
“Securities Laws” means the Securities Act of 1933, the Exchange Act, Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.
“Security Agreement” means the Security Agreement dated as of the date hereof by the Loan Parties and the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C-1.
“Security Instruments” means, collectively or individually as the context may indicate, the Security Agreement, the Canadian Security Agreement, any Deed of Hypothec, the Control Agreements, the Patent Security Agreement, the Trademark Security Agreement, each Lien Waiver and all other agreements (including securities account control agreements), instruments and other documents, whether now existing or hereafter in effect, pursuant to which any Loan Party or other Person shall grant or convey to the Administrative Agent or the Lenders a Lien in property as security for all or any portion of the Obligations.
“Settlement Date” has the meaning provided in Section 2.14.
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“Shrink” means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.
“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day publishedas administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time)..
“SOFR Loan” means a Loan bearing interest based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate.”
“Solvent” means, as to any Person, such Person (a) owns property or assets whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns property or assets whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase. For purposes hereof, the amount of all contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability.
“Specified Debt Payment” means any prepayment of Indebtedness made pursuant to Section 8.11(a)(iv) or with respect to which the Payments Conditions apply.
“Specified Investment” means any Investment made pursuant to Section 8.03(g) or (h) or with respect to which the Payments Conditions apply.
“Specified Loan Party” means a Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 2.15(c)).
“Specified Pro Forma Transaction” means, with respect to any period, any Investment, Disposition, Subsidiary designation as a Restricted Subsidiary or an Unrestricted Subsidiary or other event, including any Specified Transactions, that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis.”
“Specified Restricted Payment” means any Restricted Payment with respect to which the Payments Conditions apply.
“Specified Transaction” means each Specified Debt Payment, each Specified Investment and each Specified Restricted Payment.
“Spot Rate” means, on any determination date, (x) the Daily Exchange Rate if being determined in connection with (i) determining the Dollar Equivalent amount of any Accounts of Canadian Borrowers reported on any Borrowing Base Certificate or (ii) determining the Dollar Equivalent of any amounts reflected and/or reported in this Agreement or any other Loan Document or any related document or certificate (including financial statements and reports) delivered hereunder or thereunder to the extent any such amounts reflect or represent a balance-sheet-related item or the like, in each case, as determined by
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the Administrative Agent in its reasonable discretion, or (y) the Monthly Exchange Rate if being determined in connection with determining the Dollar Equivalent of any amounts reflected and/or reported in this Agreement or any other Loan Document or any related document or certificate (including financial statements and reports) delivered hereunder or thereunder to the extent any such amounts reflect or represent an income statement related item or the like (including, without limitation, revenue and expense amounts), in each case, as determined by the Administrative Agent in its reasonable discretion.
“Subcontractor Reserves” means the reserves established by the Administrative Agent from time to time, in its reasonable discretion, to reflect the aggregate amount of liabilities of the Loan Parties that are, or, upon nonpayment of or creation of a claim with respect to such liability, would be, (i) pursuant to Law, secured by Liens on the Collateral that are senior to the Administrative Agent’s Liens or secured by Liens on any Bonded Job Site, (ii) subject a trust arrangement with respect to the collections or proceeds of any Account or (iii) pursuant to Law, allow the Account Debtor to withhold or offset payment on any Account on account thereof, in any case arising under any applicable Law for the benefit of mechanics, materialmen, repairmen or other providers of labor or materials.
“Subordinated Debt” means unsecured Indebtedness which is expressly subordinated in right of payment to the prior Payment in Full and which is in form and on terms satisfactory to, and approved in writing by, the Administrative Agent at its sole option.
“Subordination Provisions” means any provision relating to debt or lien subordination applicable to or contained in any documents evidencing any Indebtedness, including Subordinated Debt, including as set forth in the Intercreditor Agreement or other applicable intercreditor agreements acceptable to the Administrative Agent.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company, unlimited liability company or other business entity (but not a representative office of such Person) of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Subsidiary Guarantor” means any Subsidiary of the Company that is a Guarantor.
“Surety” means any surety party to any contractual arrangements entered into by the Company or any Subsidiary with respect to any bid, performance, surety or payment bonds, contracts or like undertakings.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, together with any related schedules.
“Swap Obligation” means, with respect to any Loan Party, any obligation to perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
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“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender); provided, however that it is understood and agreed that such amounts provided by the applicable Credit Product Provider with respect to Credit Product Obligations under Swap Contracts may include a commercially reasonable level of “cushion” to account for normal short-term market fluctuations.
“Swing Line” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means BMO in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b).
“Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Tax Act” means the Income Tax Act (Canada).“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFRCORRA” means, for the applicable corresponding tenor, the forward-looking term rate based on SOFRCORRA that has been selected or recommended by the Canadian Relevant Governmental Body., and that is published by an authorized benchmark administrator and is displayed on a screen or other information service, as identified or selected by the Administrative Agent in its reasonable discretion at approximately a time and as of a date prior to the commencement of an Interest Period determined by the Administrative Agent in its reasonable discretion in a manner substantially consistent with market practice.
“Term XXXXX Notice” means the notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term XXXXX Transition Event.
“Term XXXXX Transition Date” means, in the case of a Term XXXXX Transition Event, the date that is set forth in the Term XXXXX Notice provided to the Lenders and the Borrower, for the replacement of the then-current Canadian Benchmark with the Canadian Benchmark Replacement described in clause 1(a) of such definition, which date shall be at least thirty (30) Business Days from the date of the Term XXXXX Notice.
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“Term SOFRCORRA Transition Event” means the determination by the Administrative Agent that (a) Term SOFRCORRA has been recommended for use by the Canadian Relevant Governmental Body, and is determinable for any Canadian Available Tenor, (b) the administration of Term SOFRCORRA is administratively feasible for the Administrative Agent and (c) LIBOR has already been replaced with aa Canadian Benchmark Replacement, other than Term XXXXX, has replaced CDOR in accordance with Section 3.03(bc) that is not Term SOFR(i).
“Term SOFR” means, for the applicable tenor, the Term SOFR Reference Rate on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to (a) in the case of SOFR Loans, the first day of such applicable Interest Period, or (b) with respect to Base Rate, such day of determination of the Base Rate, in each case as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Term SOFR Notice” means a notificationAdministrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Eventin its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Threshold Amount” means the Dollar Equivalent of Five Hundred Thousand Dollars ($500,000).
“Total Credit Exposure” means, as to any Lender at any time, the unused outstanding Revolving Credit Commitments of such Lender and the Credit Exposure of such Lender at such time.
“Total Revolving Credit Outstandings” means, without duplication, the aggregate Outstanding Amount of all Revolving Credit Loans, Protective Advances, Swing Line Loans and Letter of Credit Obligations.
“Trademark Security Agreement” means any trademark security agreement pursuant to which any Loan Party assigns to the Administrative Agent, for the benefit of the Secured Parties, such Person’s interest in its trademarks as security for the Obligations.
“Transaction” means, individually or collectively as the context may indicate the entering by the Borrowers of the Loan Documents to which they are a party and the funding of the Revolving Credit Facility.
“Treasury Management and Other Services” means (a) all arrangements for the delivery of treasury and cash management services, (b) all commercial credit card, purchase card, p-card and merchant card services; and (c) all other banking products or services, including trade and supply chain finance services and leases, other than Letters of Credit, in each case, to or for the benefit of any Loan Party or an Affiliate of any Loan Party which are entered into or maintained with a Lender or an Affiliate of a Lender and which are not prohibited by the express terms of the Loan Documents.
“Trust Accounts” means Deposit Accounts or Securities Accounts containing cash, cash equivalents or securities (a) held exclusively for employee benefit payments and expenses related to a Loan Party’s employees, or (b) required to be collected, remitted or withheld exclusively to pay payroll or
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taxes (including, without limitation, federal and state withholding taxes (including the employer’s share thereof)).