SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO
CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of May 26, 2023, by and among MONTROSE ENVIRONMENTAL GROUP, INC., a Delaware corporation (the “Parent Borrower”), the Lenders (as defined below) party hereto (constituting Required Lenders as of the date hereof under the Existing Credit Agreement (as defined below), the “Required Lenders”), BMO XXXXXX BANK, N.A., as successor in interest to Bank of the West (in its individual capacity, “Bank of the West”), as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Parent Borrower, MONTROSE ENVIRONMENTAL GROUP LTD., a company incorporated under the laws of the Province of British Columbia (the “Canadian Borrower”; and together with the Parent Borrower, each, a “Borrower” and collectively, the “Borrowers”), the Guarantors (as defined therein), each financial institution from time to time party thereto (collectively, the “Lenders” and individually each a “Lender”), Bank of the West as Administrative Agent, Swing Line Lender and L/C Issuer are parties to that certain Credit Agreement, dated as of April 27, 2021 (as amended by that certain First Amendment to Credit Agreement, dated as of August 30, 2022, and as otherwise amended, modified or supplemented from time to time prior to the date hereof, the “Existing Credit Agreement” and, as amended by this Amendment and as may be further amended, modified or supplemented from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have made and will make certain financial accommodations available to the Borrower; and
WHEREAS, the Administrative Agent, the Required Lenders and the Parent Borrower have jointly selected Term SOFR (as defined in the Credit Agreement) as the replacement benchmark rate; and
WHEREAS, subject to the terms and conditions set forth in this Amendment, the parties hereto have agreed to amend the Credit Agreement and make certain additional agreements as more fully set forth herein.
NOW THEREFORE, in consideration of the premises, the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendments to Credit Agreement.
(a) The Existing Credit Agreement shall be amended as set forth in Annex I hereto (stricken text shall be deleted from the Credit Agreement (indicated textually in the same manner as the following example: stricken text) and double-underlined text shall be added to the Credit Agreement (indicated textually in the same manner as the following examples: double-underlined text or double-underlined text)).
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(b) Each of Exhibit A, Exhibit I and Exhibit J to the Credit Agreement is hereby amended and restated in its entirety as set forth on Annex II hereto. The execution, delivery and performance of this Amendment shall not constitute an amendment of any other exhibits or schedules of the Existing Credit Agreement.
2. Representations and Warranties. Borrowers represent that each of the representations and warranties set forth in the Credit Agreement are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date.
3. Default; Event of Default. Borrowers represent that both immediately before and after giving effect to the this Amendment, no Default or Event of Default shall have occurred and be continuing, or would result therefrom.
4. Conditions to Effectiveness. This Amendment shall become effective as of the date (such date, the “Second Amendment Effective Date”) when, and only when, the Administrative Agent shall have received the following, in form and substance satisfactory to the Administrative Agent:
(a) counterparts of this Amendment duly executed by the Parent Xxxxxxxx, Required Lenders and the Administrative Agent; and
(b) all fees and expenses due in accordance with this Amendment and under the other Loan Documents required to have been paid on or prior to the effectiveness of this Amendment.
5. No Other Amendments. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided above and in the Annexes, operate as a waiver of any right, power or remedy of the Administrative Agent, Lenders, Swing Line Lender or L/C Issuer under the Credit Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the Credit Agreement or any of the other Loan Documents. Except for the amendments set forth above and in the Annexes, the text of the Credit Agreement and all other Loan Documents shall remain unchanged and in full force and effect and each Loan Party hereby ratifies and confirms its respective obligations thereunder. Except as expressly provided herein, including, for the avoidance of doubt, in the Annexes, this Amendment shall not constitute a modification of the Credit Agreement or a course of dealing with the Administrative Agent, Lenders, Swing Line Lender or L/C Issuer at variance with the Credit Agreement such as to require further notice by the Administrative Agent, Lenders, Swing Line Lender or L/C Issuer to require strict compliance with the terms of the Credit Agreement and the other Loan Documents in the future. Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection or continuity of the Administrative Agent’s security interests in, security titles to, or other Liens on, any Collateral for the Obligations.
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6. Governing Law; Jurisdiction; Waiver of Right to Trial by Jury. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. Furthermore, each party hereto agrees that the provisions of Section 11.14 and Section 11.15 are incorporated herein by reference mutatis mutandis as if originally set forth herein.
7. No Novation. This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard thereto.
8. Costs and Expenses. The Parent Xxxxxxxx agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the Required Lenders incurred in connection with the preparation, negotiation, execution and delivery of this Amendment as required under Section 10.08 of the Credit Agreement.
9. Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or other electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and permitted assigns.
11. Entire Understanding. This Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto. For the avoidance of doubt, this Amendment shall constitute a Loan Document.
12. Existing Eurocurrency Rate Loans. Notwithstanding the amendments to the Existing Credit Agreement implemented by this Amendment, all Eurocurrency Rate Loans (as defined in the Existing Credit Agreement, the “Existing Eurocurrency Rate Loans”) shall continue to bear interest at the Eurocurrency Rate (as defined in the Existing Credit Agreement) until the last day of the interest period applicable to each such Existing Eurocurrency Rate Loan, and thereafter, such Existing Eurocurrency Rate Loan shall be converted to a SOFR Loan with an Interest Period as selected in a notice from a Borrower and (ii) the terms of the Existing Credit Agreement as in effect immediately prior to the Second Amendment Effective Date in respect of administration of Eurocurrency Rate Loans (solely with respect to Existing Eurocurrency Rate Loans) shall remain in effect from and after the Second Amendment Effective Date until the last day of the interest period applicable to each such Existing Eurocurrency Rate Loan, solely for purposes of administering the Existing Eurocurrency Rate Loans.
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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
PARENT BORROWER: |
MONTROSE ENVIRONMENTAL GROUP, INC., a Delaware corporation |
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By: /s/ Xxxxx Xxxxx |
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Name: Xxxxx Xxxxx |
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Title: Chief Financial Officer |
[Second Amendment to Credit Agreement]
ADMINISTRATIVE AGENT: |
BMO XXXXXX BANK, N.A., as successor in interest to Bank of the West
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By: /s/ Xxxxxx Xxxx Xxxx: Xxxxxx Xxxx Xxxxx: Vice President |
[Second Amendment to Credit Agreement]
LENDERS: |
BMO XXXXXX BANK, N.A., as successor in interest to Bank of the West, as a Lender
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By: /s/ Xxxxx Xxxxxx Xxxx: Xxxxx Xxxxxx Xxxxx: Director |
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CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender |
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By: /s/ Xxxx Xxxxxxxxx Xxxx: Xxxx Xxxxxxxxx Xxxxx: Duly Authorized Signatory |
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BANK OF AMERICA, N.A., |
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By: /s/ Xxxxxxxx Xxx Xxxx: Xxxxxxxx Xxx Xxxxx: Senior Vice President |
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JPMORGAN CHASE BANK, N.A., |
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By: /s/ Xxxx Xxxxx Xxxx: Xxxx Xxxxx Xxxxx: Vice President |
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MUFG UNION BANK, N.A., |
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By: /s/ Xxxxx Xxxxxxx Xxxx: Xxxxx Xxxxxxx Xxxxx: Director |
[Second Amendment to Credit Agreement]
ANNEX I
See attached.
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CREDIT AGREEMENT
Dated as of April 27, 2021
among
MONTROSE ENVIRONMENTAL GROUP, INC.,
as the Parent Borrower,
MONTROSE ENVIRONMENTAL GROUP LTD.,
as the Canadian Borrower,
CERTAIN SUBSIDIARIES OF THE PARENT BORROWER,
as the Guarantors,
BMO XXXXXX BANK OF THE WEST, N.A.,
as successor in interest to Bank of the West
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
THE LENDERS
from time to time party hereto
BMO XXXXXX BANK OF THE WEST, N.A.,
as successor in interest to Bank of the West,
as Sole Bookrunner and Joint Lead Arranger
and
CAPITAL ONE, NATIONAL ASSOCIATION
and BOFA SECURITIES, INC.,
as Joint Lead Arrangers
and
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
as amended by that certain First Amendment to Credit Agreement,
dated as of August 30, 2022 and that certain Second Amendment to Credit Agreement,
dated as of May 26, 2023
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TABLE OF CONTENTS
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Page |
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS |
2 |
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1.01 |
Defined Terms |
2 |
1.02 |
Other Interpretive Provisions |
6063 |
1.03 |
Accounting Terms |
6164 |
1.04 |
Rounding |
6265 |
1.05 |
Times of Day; Rates; Exchange Rates; Currency Equivalents |
6265 |
1.06 |
Letter of Credit Amounts |
6366 |
1.07 |
Limited Condition Acquisitions |
6366 |
1.08 |
Quebec Interpretation |
6567 |
1.09 |
Alternative Currencies |
6568 |
1.10 |
Divisions |
6669 |
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ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS |
67 70 |
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2.01 |
Commitments |
6770 |
2.02 |
Borrowings |
6871 |
2.03 |
Letters of Credit |
7376 |
2.04 |
Swing Line Loans |
7680 |
2.05 |
Prepayments |
7983 |
2.06 |
Termination or Reduction of Aggregate Revolving Commitments |
8286 |
2.07 |
Repayment of Loans |
8387 |
2.08 |
Interest |
8488 |
2.09 |
Fees |
8589 |
2.10 |
Computation of Interest and Fees |
8690 |
2.11 |
Evidence of Debt |
8790 |
2.12 |
Payments Generally; Agents' Clawback |
8791 |
2.13 |
Sharing of Payments by Lenders |
9094 |
2.14 |
Cash Collateral |
9194 |
2.15 |
Defaulting Lenders |
9296 |
2.16 |
Designated Lenders |
9598 |
2.17 |
Erroneous Payment |
9598 |
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ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY |
98101 |
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3.01 |
Taxes |
98101 |
3.02 |
Illegality |
102106 |
3.03 |
Inability to Determine Rates |
104107 |
3.04 |
Increased Costs |
105108 |
3.05 |
Compensation for Losses |
106110 |
3.06 |
Mitigation Obligations; Replacement of Lenders |
107111 |
3.07 |
Survival |
107111 |
3.08 |
Benchmark Replacement; CDOR Rate Discontinuation |
107111 |
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3.09 |
Canadian Benchmark Replacement Setting |
114 |
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ARTICLE IV. GUARANTY |
119 |
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4.01 |
The Guaranty |
119 |
4.02 |
Obligations Unconditional |
111119 |
4.03 |
Reinstatement |
112121 |
4.04 |
Certain Additional Waivers |
121 |
4.05 |
Remedies |
113121 |
4.06 |
Rights of Contribution |
113121 |
4.07 |
Guarantee of Payment; Continuing Guarantee |
113121 |
4.08 |
Keepwell |
113121 |
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ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS |
114122 |
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5.01 |
Closing Conditions |
114122 |
5.02 |
Conditions to all Credit Extensions made after the Closing Date |
126 |
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ARTICLE VI. REPRESENTATIONS AND WARRANTIES |
118127 |
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6.01 |
Existence, Qualification and Power |
118127 |
6.02 |
Authorization; No Contravention |
119127 |
6.03 |
Governmental Authorization; Other Consents |
119127 |
6.04 |
Binding Effect |
119127 |
6.05 |
Financial Statements; No Material Adverse Effect |
119127 |
6.06 |
Litigation |
120128 |
6.07 |
No Default |
120128 |
6.08 |
Ownership of Property; Liens |
120128 |
6.09 |
Environmental Compliance |
120129 |
6.10 |
Insurance |
121129 |
6.11 |
Taxes |
121130 |
6.12 |
ERISA and Canadian Pension Plan Compliance |
122130 |
6.13 |
Subsidiaries |
123131 |
6.14 |
Margin Regulations; Investment Company Act |
123131 |
6.15 |
Disclosure |
123132 |
6.16 |
Compliance with Laws |
124132 |
6.17 |
Intellectual Property; Licenses, Etc. |
124132 |
6.18 |
Solvency |
124132 |
6.19 |
Perfection of Security Interests in the Collateral |
124133 |
6.20 |
Business Locations |
124133 |
6.21 |
Labor Matters |
125133 |
6.22 |
Government Sanctions |
125133 |
6.23 |
PATRIOT Act and Canadian AML Acts |
125133 |
6.24 |
Anti-Corruption Laws |
125133 |
6.25 |
No Affected Financial Institution |
125134 |
6.26 |
Covered Entities |
125134 |
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ARTICLE VII. AFFIRMATIVE COVENANTS |
126134 |
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7.01 |
Financial Statements |
126134 |
7.02 |
Certificates; Other Information |
127135 |
7.03 |
Notices |
129137 |
7.04 |
Payment of Obligations |
129138 |
7.05 |
Preservation of Existence, Etc. |
129138 |
7.06 |
Maintenance of Properties |
130138 |
7.07 |
Maintenance of Insurance |
130139 |
7.08 |
Compliance with Laws |
131139 |
7.09 |
Books and Records |
131139 |
7.10 |
Inspection Rights |
131139 |
7.11 |
Use of Proceeds |
131140 |
7.12 |
Additional Subsidiaries |
132140 |
7.13 |
ERISA Compliance and Canadian Pension Plan Compliance |
133142 |
7.14 |
Pledged Assets |
134142 |
7.15 |
Further Assurances |
134143 |
7.16 |
Compliance with Environmental Laws |
135143 |
7.17 |
Deposit Accounts |
135143 |
7.18 |
Activities of the Parent Borrower |
136144 |
7.19 |
Quarterly Lenders Calls |
136144 |
7.20 |
Post-Closing Covenants |
136145 |
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ARTICLE VIII. NEGATIVE COVENANTS |
136145 |
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8.01 |
Liens |
137145 |
8.02 |
Investments |
139148 |
8.03 |
Indebtedness |
141149 |
8.04 |
Fundamental Changes |
143151 |
8.05 |
Dispositions |
144152 |
8.06 |
Restricted Payments |
144152 |
8.07 |
Change in Nature of Business |
145154 |
8.08 |
Transactions with Affiliates and Insiders |
145154 |
8.09 |
Burdensome Agreements |
146154 |
8.10 |
Use of Proceeds |
146155 |
8.11 |
Financial Covenants |
147155 |
8.12 |
Prepayment of Other Indebtedness, Etc. |
147156 |
8.13 |
Organization Documents; Series A-2 Preferred Equity Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity, Etc. |
148156 |
8.14 |
Ownership of Subsidiaries |
148157 |
8.15 |
Sale Leasebacks |
148157 |
8.16 |
Sanctions |
148157 |
8.17 |
Anti-Corruption Laws |
149157 |
8.18 |
Controlled Substances |
149157 |
8.19 |
Canadian Defined Benefit Pension Plans |
149157 |
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ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES |
149158 |
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9.01 |
Events of Default |
149158 |
9.02 |
Remedies Upon Event of Default |
152160 |
9.03 |
Application of Funds |
152161 |
9.04 |
Equity Cure |
154162 |
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ARTICLE X. AGENTS |
156164 |
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10.01 |
Appointment and Duties |
156164 |
10.02 |
Binding Effect |
157166 |
10.03 |
Use of Discretion |
158166 |
10.04 |
Delegation of Rights and Duties |
159167 |
10.05 |
Reliance and Liability |
159168 |
10.06 |
Administrative Agent Individually |
160169 |
10.07 |
Lender Credit Decision |
160170 |
10.08 |
Expenses; Indemnities; Withholding |
161170 |
10.09 |
Resignation of Agents or L/C Issuer |
162171 |
10.10 |
Release of Collateral or Guarantors |
163172 |
10.11 |
Additional Secured Parties |
163172 |
10.12 |
Additional Titles |
164173 |
10.13 |
Credit Bid |
164173 |
10.14 |
ERISA Matters |
165175 |
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ARTICLE XI. MISCELLANEOUS |
166176 |
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11.01 |
Amendments, Etc. |
166176 |
11.02 |
Notices and Other Communications; Facsimile Copies |
170179 |
11.03 |
No Waiver; Cumulative Remedies; Enforcement |
172181 |
11.04 |
Expenses; Indemnity; and Xxxxxx Xxxxxx |
173182 |
11.05 |
Payments Set Aside |
175184 |
11.06 |
Successors and Assigns |
176185 |
11.07 |
Treatment of Certain Information; Confidentiality |
183192 |
11.08 |
Set-off |
184193 |
11.09 |
Interest Rate Limitation |
185194 |
11.10 |
Counterparts; Integration; Effectiveness |
185194 |
11.11 |
Survival of Representations and Warranties |
185194 |
11.12 |
Severability |
186195 |
11.13 |
Replacement of Lenders |
186195 |
11.14 |
Governing Law; Jurisdiction; Etc. |
187196 |
11.15 |
Waiver of Right to Trial by Jury |
188197 |
11.16 |
Electronic Execution of Assignments and Certain Other Documents |
188197 |
11.17 |
USA PATRIOT Act and Canadian AML Acts Notice |
189198 |
11.18 |
No Advisory or Fiduciary Relationship |
189198 |
11.19 |
Appointment of Parent Borrower |
189198 |
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11.20 |
Reserved |
190199 |
11.21 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
190199 |
11.22 |
Acknowledgement Regarding Any Supported QFCs |
190199 |
11.23 |
Judgment Currency |
191200 |
11.24 |
Reserved |
191200 |
11.25 |
Reserved |
191200 |
11.26 |
Québec Security |
191201 |
11.27 |
Joint and Several Liability of Borrowers |
192201 |
SCHEDULES |
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1.01 |
Closing Date Joint Ventures |
2.01 |
Commitments and Applicable Percentages; L/C Commitment; Swing Line Commitment |
6.10 |
Insurance |
6.11 |
Taxes |
6.13 |
Subsidiaries |
6.17 |
IP Rights |
6.20(a) |
Locations of Real Property |
6.20(b) |
Taxpayer and Organizational Identification Numbers |
6.20(c) |
Changes in Legal Name, State of Formation and Structure |
7.20 |
Post- Closing Covenants |
8.01 |
Liens Existing on the Closing Date |
8.02 |
Investments Existing on the Closing Date |
8.03 |
Indebtedness Existing on the Closing Date |
8.08 |
Transactions with Affiliates and Insiders |
11.02 |
Certain Addresses for Notices |
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EXHIBITS |
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A |
Form of Loan Notice |
B |
Form of Revolving Note |
C- 1 |
Form of Term Loan Note |
C-2 |
Form of Incremental Term Note |
D |
Form of Compliance Certificate |
E |
Form of Joinder Agreement |
F |
Form of Assignment and Assumption |
G |
Form of Secured Party Designation Notice |
H (1- 4) |
Forms of U.S. Tax Compliance Certificates |
I |
Form of Incremental Term Loan Lender Joinder Agreement |
J |
Form of Notice of Loan Prepayment |
K |
Form of Swing Line Loan Notice |
L |
Form of Swing Line Note |
M |
Form of L/C Request |
N |
Form of Solvency Certificate |
O |
Form of Pricing Certificate |
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of April 27, 2021 among MONTROSE ENVIRONMENTAL GROUP, INC., a Delaware corporation (the “Parent Borrower”) MONTROSE ENVIRONMENTAL GROUP LTD., a company incorporated under the laws of the Province of British Columbia (the “Canadian Borrower”; and together with the Parent Borrower, each, a “Borrower” and collectively, the “Borrowers”), the Guarantors (defined herein), each financial institution from time to time party hereto (collectively, the “Lenders” and individually each a “Lender”), BMO XXXXXX BANK OF THE WEST, N.A., as successor in interest to Bank of the West (in its individual capacity, “Bank of the West”), as Administrative Agent, Swing Line Lender and L/C Issuer.
WHEREAS, the Borrowers have requested, and the Lenders have agreed to make available to the Borrowers, a revolving credit facility (including a letter of credit subfacility) and a term loan upon and subject to the terms and conditions set forth in this Agreement for the uses of proceeds described in Section 7.11;
WHEREAS, the Loan Parties desire to secure all of their Obligations under the Loan Documents by granting to Administrative Agent, for the benefit of the Secured Parties, a security interest in and lien upon substantially all of their property, including the Equity Interests of all Borrowers (other than Parent Borrower);
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
As used in this Agreement, the following terms shall have the meanings set forth below:
“Accepting Lenders” has the meaning specified in Section 11.01.
“Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or any substantial portion of the property of, or a line of business, division of or other business unit of, another Person or at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger, amalgamation or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise; provided that the purchase of specific equipment of a Person for an aggregate purchase price of less than $2,000,000 that (i) constitutes all or any substantial portion of the property of, or a line of business, division or other business unit of, such Person, (ii) would otherwise constitute capital expenditures of the Parent Borrower and its Subsidiaries in accordance with GAAP and (iii) are not acquired in connection with the acquisition of the operations or business of such Person as a going concern, shall not be deemed to be an Acquisition hereunder.
“Additional Collateral Documents” means each fixed or floating charge, debenture, deed, mortgage, security document, filing, assignment or security instrument or other similar instrument or agreement, in form and substance reasonably satisfactory to the Administrative Agent, executed by any Loan Party or any of their Subsidiaries with or in favor of the Administrative Agent in order to grant Liens on the Equity Interests of and real, personal or mixed property of (i) any Loan Party or any of its Subsidiaries organized or incorporated in any jurisdiction other than the United States to secure the Obligations or (ii) of any Loan Party located in any jurisdiction other than the United States.
“Administrative Agent” means Bank of the West, in its capacity as administrative agent under any of the Loan Documents, and any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address or such other address as the Administrative Agent may from time to time notify the Parent Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the zero percent (0%), then Adjusted Term SOFR shall be deemed to be zero percent (0%).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
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“Affiliate” means, with respect to any 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.
“Aircraft” means the aircraft, engines and propellers together with the landing gear, avionics, systems, appliances, accessories, components, parts, furnishings and other equipment belonging to, installed in or attached or appurtenant to the foregoing and all loose, ground and safety equipment and spare parts relating to the foregoing.
“Agents” means the Administrative Agent.
“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date is $125,000,000.
“Agreement” means this Credit Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Agreement Currency” has the meaning specified in Section 11.23.
“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, interest rate floor or otherwise, in each case, incurred or payable by the Parent Borrower generally to all lenders of such Indebtedness, calculated in a manner reasonably determined by the Administrative Agent; provided that “All- In Yield” shall exclude arrangement, structuring, commitment, underwriting or other similar fees (regardless of whether paid in whole or in part to any lenders).
“Alternative Currency” means Canadian Dollars, Euros, Pounds Sterling, Australian Dollars and any currency that is approved in accordance with Section 1.09(a).
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“Alternative Currency Sublimit” means an amount equal to $10,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Applicable Percentage” means with respect to any Lender at any time (a) with respect to such Xxxxxx’s Revolving Commitment at any time, the percentage of the Aggregate Revolving Commitments represented by such Xxxxxx’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect giving effect to any subsequent assignments,
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(b) with respect to such Xxxxxx’s portion of the outstanding Term Loan, the percentage of the Term Loan represented by the outstanding principal amount of such Xxxxxx’s portion of the Term Loan at such time and (c) with respect to such Xxxxxx’s portion of the outstanding Incremental Term Loan at any time, the percentage of the outstanding principal amount of the Incremental Term Loan held by such Lender at such time. The initial Applicable Percentage of each Lender as of the Closing Date is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or other agreement pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, for any day, with respect to any Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Base Rate Spread”, “EurodollarSOFR/CDOR Spread”, “Commitment Fee Rate”, or “Letter of Credit Fee”, as the case may be, based upon the Consolidated Total Leverage Ratio as of the most recent determination date, provided that until the delivery to the Administrative Agent of the Parent Borrower’s consolidated financial information pursuant to Section 7.01, the “Applicable Rate” shall be the applicable rates per annum set forth below in Tier III:
Consolidated Total Leverage Ratio
|
EurodollarSOFR/CDOR Spread
|
Base Rate Spread |
Commitment Fee Rate |
Letter of Credit Fee |
Tier I _3.75 to 1.0 |
2.50% |
1.50% |
0.25% |
2.50% |
Tier II 3.75 to 1.0 but 3.25 to 1.0 |
2.25% |
1.25% |
0.225% |
2.25% |
Tier III 3.25 to 1.0 but 2.50 to 1.0 |
2.00% |
1.00% |
0.20% |
2.00% |
Tier IV 2.50 to 1.0 but 1.75 to 1.0 |
1.75% |
0.75% |
0.15% |
1.75% |
Tier V 1.75 to 1.0 |
1.50% |
0.50% |
0.15% |
1.50% |
For purposes of the foregoing, (a) the Applicable Rate shall be determined as of the end of each fiscal quarter of the Parent Borrower, based upon the Parent Borrower’s annual or quarterly consolidated financial statements delivered pursuant to Section 7.01; (b) each change in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent of such consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change, provided that at the option of the Administrative Agent or at the request of the Required Lenders, if the
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Borrower fails to deliver the annual or quarterly consolidated financial statements required to be delivered by it pursuant to Section 7.01, the Consolidated Total Leverage Ratio shall be deemed to be in Tier 1 during the period from the expiration of the time for delivery thereof until such consolidated financial statements are delivered; and (c) the “Base Rate Spread” and “EurodollarSOFR/CDOR Spread”, as applicable, may be increased or decreased, from time to time, by the Sustainability Margin Adjustment.
If at any time the Administrative Agent reasonably determines that the financial statements upon which the Applicable Rate was determined were incorrect (whether based on a restatement, fraud or otherwise), or any ratio or compliance information in a Compliance Certificate or other certification was incorrectly calculated, relied on incorrect information or was otherwise not accurate, true or correct, the Borrowers shall be required to retroactively pay any additional amount that the Borrowers would have been required to pay if such financial statements, Compliance Certificate or other information had been accurate and/or computed correctly at the time they were delivered.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“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.
“Arrangers” means Bank of the West, Capital One and BofA, in their capacities as joint lead arrangers.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender 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 F or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and, in the case of any Assignment and Assumption with respect to a Revolving Loan, Letter of Credit or Revolving Commitment, the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear as indebtedness on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease of any Person, the capitalized amount of the remaining lease payments under the relevant lease that would appear as indebtedness 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 and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
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“Audited Financial Statements” has the meaning provided in Section 7.01(a).
“Availability Period” means, with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of all of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.08(e).
“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, rule, regulation 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).
“Base Rate” means, for any day, a floating interest rate per annum equal to the highest of (a) the rate of interest from time to time announced by the Administrative Agent at its principal office as its prime commercial lending rate (it being understood that such prime commercial rate is a reference rate and does not necessarily represent the lowest or best rate being charged by the Administrative Agent to any customer and such rate is set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors), (b) the sum of one half of one percent (0.50%) per annum and the Federal Funds Rate and (c) the sum of (x) the Eurocurrency RateAdjusted Term SOFR calculated for each such day based on an Interest Period of one month determined two (2) Business Days prior to such day (giving effect to the minimum Eurocurrency RateAdjusted Term SOFR of 0.00% per annum), plus (y) one percent (1.00%) per annum, in each instance, as of such day. Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the Administrative Agent’s prime commercial lending rate, the Federal Funds Rate or the Eurocurrency RateAdjusted Term SOFR for an Interest Period of one (1) month.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans are only available to the Parent Borrower and in Dollars.
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“Base Rate Term SOFR Determination Day” has the meaning set forth in the definition of Term SOFR.
“Benchmark” shall mean, initially, the Eurocurrency RateAdjusted Term SOFR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have has occurred with respect to the Eurocurrency RateAdjusted Term SOFR or the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to paragraph (a) or (b) of Section 3.08.
“Benchmark Replacement” shall mean, 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) the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; and
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the Benchmark Replacement shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment as set forth in clause (1) of this definition (subject to the first proviso above). Ifif the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) 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.
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“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) [reserved]; and
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement”, the first alternative set forth in the order below that can be determined by the Administrative Agent:
a. the spread adjustment or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
b. the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement”, 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 for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities;.
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to 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”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of look-back periods, the applicability of breakage provisions and other technical, administrative or operational matters) that the Administrative Agent reasonably 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
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Administrative Agent reasonably 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).
“Benchmark Replacement Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”, the later of (a) the date of the public statement or publication of information referenced therein and (b) 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);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event”, the first date of the public on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication of information referenced thereinin such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;
(3) [reserved]; or
(4) [reserved].
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 3.08(b); or
(4) in the case of an 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 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.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the Benchmark Replacement Date will be deemed to have occurred in the case of clause (1) or (2) above 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).
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“Benchmark Transition Event” shall mean, with respect to any Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) 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);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component thereof), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component thereof) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component thereof), in each case which states that the administrator of such Benchmark (or such component thereof) 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); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longernot, or as of a specified future date will not 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” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clause (1) or (2) of the definition thereof has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08.
“Biogas Growth” means starting in the calendar year 2022, the total biogas produced in the calendar year measured in million British Thermal Units (mmBTU) divided by the total biogas produced in the preceding calendar year measured in mmBTU multiplied by one hundred (100).
“Board” means the Board of Governors of the Federal Reserve System.
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“Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“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 Internal Revenue 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 Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“BofA” means BofA Securities, Inc.
“Bona Fide Lending Affiliate” means any bona fide debt fund, investment vehicle, regulated banking entity or non- regulated lending entity that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans or bonds and/or similar extensions of credit in the ordinary course of business.
“Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 7.02.
“Borrowing” means each of the following: (a) a borrowing of Swing Line Loans pursuant to Section 2.04 and (b) a borrowing consisting of simultaneous Loans of the same Type, and, in the case of Eurocurrency RateSOFR Loans or CDOR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Business Day” means (a) 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 Administrative Agent’s Office is located and (b) (i) if such day relates to any interest rate settings as to a Eurocurrency RateSOFR Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency RateSOFR Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateSOFR Loan, means any such day that is also a London BankingU.S. Government Securities Business Day, and (ii) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Canadian Dollarsa CDOR Loan, means any such day other than a day on which banking institutions in Toronto, Ontario or Vancouver, British Columbia are authorized by law to close and (c) with respect to any action taken under, or in relation to, the Additional Collateral Documents, a day (other than Saturday or Sunday) on which banks are open for general business in the appropriate collateral jurisdiction, respectively.
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“Businesses” means, at any time, a collective reference to the businesses operated by the Parent Borrower and its Subsidiaries at such time.
“Canadian AML Acts” means applicable Canadian law regarding anti- money laundering, anti- terrorist financing, government sanction and “know your client” matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), Parts II. 1, XII.2 and s. 354 of the Criminal Code (Canada), and the Special Economic Measures Act (Canada).
“Canadian Borrower” has the meaning specified in the introductory paragraph hereto.
“Canadian Defined Benefit Pension Plan” means a Canadian Pension Plan that contains or has ever contained a “defined benefit provision” as such term is defined in Section 147.1(1) of the ITA.
“Canadian Dollar” means the lawful currency of Canada.
“Canadian Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Canadian Dollars, such amount, and (b) with respect to any amount denominated in Dollars, the equivalent amount thereof in Canadian Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Canadian Dollars with Dollars.
“Canadian Dollar Sublimit” means an amount equal to the lesser of the Aggregate Revolving Commitments and $10,000,000. The Canadian Dollar Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Canadian Loan Parties” means, collectively, the Canadian Borrower and each Guarantor organized under the laws of Canada or any province or territory thereof.
“Canadian Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Canadian Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (b) all obligations of any Canadian Subsidiary owing to a Treasury Management Bank or a Swap Bank in respect of Secured Treasury Management Agreements or Secured Swap Agreements, in the case of each of clauses (a) and (b), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Canadian Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that the “Canadian Obligations” of a Canadian Loan Party shall exclude any Excluded Swap Obligations with respect to such Canadian Loan Party.
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“Canadian Pension Plan” means a pension plan or plan that is subject to applicable pension standards legislation in any jurisdiction of Canada and that is organized and administered to provide pensions, pension benefits or retirement benefits for employees and former employees of any Canadian Loan Party or any Subsidiary thereof, or in respect of which any Loan Party or any Subsidiary thereof has any obligations to contribute, or in respect which any Loan Party or any Subsidiary thereof has any liability, contingent or actual, and, for the avoidance of doubt, shall include any “multi- employer pension plan” as defined in Section 1(3) of the Pension Benefits Act (Ontario), whether or not subject to the Pension Benefits Act (Ontario).
“Canadian Security Agreement” means the Canadian Security and Pledge Agreement, dated as of the Closing Date, executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of the Canadian Loan Parties and governed by the laws of the Province of Ontario.
“Canadian Subsidiary” means each Foreign Subsidiary organized under the laws of Canada or any province or territory thereof.
“Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, except that “Cannabis” does not include: (a) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination; (b) hemp, defined as the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis or (c) any other part or variation or derivative of such plant of which the use, consumption, distribution or sale is not in violation of applicable Law.
“Capital Lease” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person, subject, for the avoidance of doubt, to the last sentence of Section 1.03(a).
“Capital One” means Capital One, National Association.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of L/C Issuer, the Swing Line Lender or the Revolving Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations or Swing Line Loans (as the context may require), cash or deposit account balances, backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the applicable L/C Issuer and/or, if the Administrative Agent and the L/C Issuer or the Swing Line Lender, as applicable, shall agree in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance
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satisfactory to the Administrative Agent and the L/C Issuer or the Swing Line Lender, as applicable. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, as amended (including any successor thereto), the Economic Aid to Hard-Hit Small Business, Nonprofits, and Venues Act (Pub. L. 116-260), and, in each case, all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, regardless of the date enacted, adopted, issued or implemented.
“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States, Canada, any member of the European Union, Switzerland, the United Kingdom, or Australia or any agency or instrumentality thereof (provided that the full faith and credit of the United States, Canada, or such other applicable country is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition, (b) Dollar, Canadian Dollar, Euros, Pounds Sterling, Swiss Francs, Swedish Krona, or Australian Dollars denominated time deposits and certificates of deposit of (i) any Lender, (ii) any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, Canada, any province or territory thereof, Australia, United Kingdom, Switzerland or any member of the European Union, any province or territory thereof of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx’x is at least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P- 1 (or the equivalent thereof) or better by Moody’s and maturing within six (6) months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States, the United Kingdom, Switzerland, any member of the European Union, Australia or Canada in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations, (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d), (f) in the case of any Foreign Subsidiary, investments denominated in a Local Currency, in each case which are of substantially the same type as the items specified in clauses (a) through (e) above, and (g) other short term liquid investments approved in writing by Administrative Agent. “Local Currency” means the applicable generally accepted currency or currencies of the jurisdiction where a Foreign Subsidiary is organized.
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“CDOR Rate” means the average of the annual rates for bankers’ acceptances having the term that is specified for the applicable period that appears on the “Refinitiv Screen Canadian Dollar Offered Rate (CDOR) Page” of Refinitiv Benchmark Services (UK) Limited (or such other page as may, from time to time, replace such page on that service for the purpose of displaying quotations for bankers’ acceptances accepted by leading Canadian financial institutions) of Reuters Monitor Money Rates Service (or Affiliate thereof or any successor thereto) as at 10:00 a.mas at 10:15 a.m. (Toronto time) on such day, provided that if such rate does not appear on the Reuters Screen CDOR page Canadian Dollar Offered Rate (CDOR) Page of Refinitiv Benchmark Services (UK) Limited at such time on such date or for the specified term, the CDOR Rate for such date will be the annual rate of interest (rounded upward, if necessary, to the nearest basis point) as at 10:00 a.m10:15 a.m. (Toronto time) on such date on the basis of the discount amount at which Administrative Agent or its successor is then offering to purchase bankers’ acceptances accepted by it having a comparable aggregate face amount and comparable maturity date to the aggregate face amount and maturity date of the particular bankers’ acceptances. For greater certainty, the CDOR Rate shall not be less than zero.
“CDOR Loan” means a Loan that bears interest at a rate based on CDOR Rate.
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law, 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 anything herein to the contrary, (i) the Xxxx- Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) 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, Canadian 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 the occurrence of any of the following events:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes, directly or indirectly, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, 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 thirty-five percent (35%) or more of the Equity Interests of the Parent Borrower entitled to vote for members of the board of directors or equivalent governing body of the Parent Borrower on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
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(b) the Parent Borrower ceases to directly or indirectly own one hundred percent (100%) of the voting rights and economic interests (on a fully diluted basis) with respect to all ownership interests of the Subsidiaries existing on the Closing Date (other than (x) any such Subsidiary, all of the ownership interests of which have been sold or otherwise disposed of in accordance with this Agreement, or (y) the Closing Date Joint Ventures) at all times; or
(c) the occurrence of a “change in control”, “liquidity event” or comparable term under the Series A-2 Preferred Equity Documents, in each case, resulting in a mandatory redemption (but not conversion) of the Series A-2 Preferred Equity.
“Closing Date” means the date hereof.
“Closing Date Integration Project” means the integration of CTEH and its Subsidiaries into the Parent Borrower and its other Subsidiaries.
“Closing Date Joint Ventures” means the Subsidiaries of the Parent Borrower set forth on Schedule 1.01.
“Collateral” means a collective reference to all real and personal property with respect to which Xxxxx in favor of the Administrative Agent, for the benefit of the holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.
“Collateral Documents” means a collective reference to the Security Agreement, the Canadian Security Agreement, the Additional Collateral Documents, any Deeds of Hypothec, and any other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14.
“Commitment” means, as to each Lender, the Revolving Commitment of such Lender, the Term Loan Commitment of such Lender and/or the Incremental Term Loan Commitment of such Lender.
“Commitment Fee” has the meaning specified in Section 2.09(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. Section 1 et seq.) as amended or otherwise modified, and any successor statute.
“Competitor” means any direct operating company competitor, supplier, or customer of the Borrowers or their respective subsidiaries.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
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“Consolidated Capital Expenditures” means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, all capital expenditures determined in accordance with GAAP, but excluding (i) expenditures made in connection with the acquisition, replacement, substitution or restoration of assets to the extent financed (x) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored, (y) with cash awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced or (z) with cash proceeds of Dispositions that are reinvested in accordance with this Agreement, (ii) Permitted Acquisitions or other Investments expressly permitted under Section 8.02, and (iii) expenditures made as a tenant in leasehold improvements to the extent reimbursed by its landlord or any other unaffiliated third party.
“Consolidated Cash Taxes” means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, the aggregate of all taxes, as determined in accordance with GAAP, to the extent the same are paid in cash during such period.
“Consolidated EBITDA” means for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, an amount equal to:
(a) Consolidated Net Income for such period;
plus,
(b) without duplication, the following to the extent (except in the case of clauses (b)(viii)(B) and (b)(x)(C) below) deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period;
(ii) net income tax expense (or net expense for franchise taxes in lieu of income taxes) of the Parent Borrower and its Subsidiaries for such period;
(iii) depreciation and amortization expense for such period;
(iv) fees, charges and expenses of advisors, legal counsels, lenders, agents or representatives of agents or lenders incurred on or prior to the Closing Date to the extent (A) (a) incurred in connection with the transactions contemplated hereby, or (b) incurred under the Existing Credit Agreement (and any proposed or actual amendments thereto or restatements thereof) or discharge of the indebtedness incurred thereunder and (B) not capitalized (it being agreed that if capitalized, the same are covered by clause (b)(iii) above);
(v) integration and transition expenses (including, without limitation, legal or consulting expenses) incurred in connection with the Closing Date Integration Project and any Permitted Acquisitions or other investment permitted under the Loan Documents in an aggregate amount not to exceed $2,000,000 during such measurement period;
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(vi) fees, charges and expenses (including, without limitation, of advisors, legal counsels, agents or representatives of the Administrative Agent, the Lenders, Series A-2 Preferred Equity Holders, and the Borrowers) (A) incurred in connection with this Agreement, the other Loan Documents and the other transactions contemplated hereby or thereby and consummated on the date hereof (a) incurred or paid on the date hereof in such amounts and to such parties as are identified on the funding memorandum delivered to the Administrative Agent on or prior to the date hereof or (b) incurred or paid within one hundred eighty (180) days on, before or following the date hereof, solely with respect to this clause (b), in an aggregate amount not to exceed $2,000,000 or (B) pursuant to or in connection with any amendment, consent, waiver or modification to the Loan Documents or the administration thereof;
(vii) all non-cash charges or losses for such period, including non-cash stock based compensation expense for such period (other than (A) charges relating to inventory or accounts receivable and (B) any such non-cash charges or losses to the extent representing accruals of or reserves for cash expenses in any future period or an amortization of a prepaid cash expense);
(viii) (A) charges and expenses reimbursed to the Parent Borrower and its Subsidiaries by insurance or indemnity payments by third parties for such period and, in the case of this clause (A), such additional charges and expenses for such period that, in the good faith judgment of the Parent Borrower, are reasonably expected to be so reimbursed to the Parent Borrower and its Subsidiaries within one (1) year after the incurrence of such charge or expense (and if not so reimbursed within one (1) year, such unreimbursed amounts shall be deducted from Consolidated EBITDA during the next period), and (B) proceeds of business interruption insurance received in such period in an amount representing the earnings for such period that such proceeds are intended to replace (to the extent not reflected in Consolidated Net Income);
(ix) reasonable costs and expenses incurred in connection with Permitted Acquisitions whether consummated or unconsummated during such period to the extent such costs and expenses are not capitalized (it being agreed that if capitalized, the same are covered by clause (b)(iii) above);
(x) (A) other non-recurring or extraordinary losses, charges and expenses for such period, (B) losses from start-up labs or de novo locations, businesses or services, so long as such loss was incurred within twelve (12) months of the openings of such start-up labs or de novo locations, or the initial investment in such de novo business or service offering, as applicable, and (C) the amount of “run-rate” cost savings and synergies (the “Cost Savings”) reasonably projected by the Parent Borrower in good faith to result from actions taken prior to the last day of the applicable measurement period, or expected to be taken following such period (which cost savings or synergies shall be subject only to certification by a senior officer and shall be calculated on a Pro Forma Basis as though such cost savings or synergies had been realized on the first day of such period), net of the amount of actual benefits realized prior to or during such period from such actions; provided that such senior officer shall have certified to the Administrative Agent that (x) such cost savings or synergies are reasonably identifiable, reasonably attributable to the
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actions specified and reasonably anticipated to result from such actions, and (y) such actions have been taken or are to be taken within twelve (12) months from the last day of such measurement period; provided that no cost savings or operating expense reductions shall be added pursuant to this clause (b)(x)(C) to the extent duplicative of any amounts otherwise added to, or included in, Consolidated EBITDA, whether through an adjustment on a Pro Forma Basis or otherwise, for such period;
(xi) (A) fees, charges and expenses of advisors, legal counsels, lenders, agents or representatives incurred on or before December 31, 2020, in respect of any credit facilities incurred or discharged on or around April 13, 2020, to the extent not capitalized (it being agreed that if capitalized, the same are covered by clause (b)(iii) above), (B) reasonable fees and expenses of professional advisors, investment bankers and legal counsel, bonuses incurred, and filing and other fees payable to, or in connection with filings made with, the SEC, in each case, in connection with the initial public offering and the secondary offering, each of which were consummated during fiscal year ending December 31, 2020, in an amount not to exceed, with respect to this clause (B), $8,000,000 in the aggregate, (C) any “make-whole premium” paid in connection with a redemption of the Series A-1 Preferred Equity, to the extent not capitalized (it being agreed that if capitalized, the same are covered by clause (b)(iii) above), and (D) fees, charges and expenses incurred in connection with the consummation of the acquisition of CTEH and other acquisitions consummated prior to the closing date which constitute “Permitted Acquisitions” under the Existing Credit Agreement, to the extent not capitalized (it being agreed that if capitalized, the same are covered by clause (b)(iii) above);
provided, that the aggregate amount added back to Consolidated EBITDA pursuant to clause (b)(x)(A)-(b)(x)(C) shall not exceed the greater of (x) $10.0 million and (y) seventeen and one half percent (17.50%) of Consolidated EBITDA for any such period in the aggregate (calculated prior to giving effect to such addbacks).
minus
(c) to the extent included in calculating Consolidated Net Income,
(i) the amount of cash expended in such period in respect of any amount that, under clause (b)(vii) above, was taken into account in determining Consolidated EBITDA for such or any prior period, all as determined in accordance with GAAP;
(ii) all non-cash gains for such period;
(iii) all extraordinary gains for such period;
(iv) all non-recurring gains; and
(v) without limitation of clauses (iii) and (iv) above, all other gains included in Consolidated Net Income not generated directly from the operations of the permitted lines of business of the Parent Borrower and its Subsidiaries;
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and provided, that (x) Consolidated EBITDA shall be calculated so as to exclude the effect of any gain or loss for such period that represents after-tax gains or losses attributable to any sale, transfer or other disposition of assets outside the ordinary course of business; and (y) for purposes of calculating Consolidated EBITDA for any period that the Parent Borrower has consummated a Permitted Acquisition or a material disposition with a fair market value in excess of $500,000, Consolidated EBITDA for such period shall be calculated after giving effect on a Pro Forma Basis thereto;
and provided further, that, notwithstanding anything to the contrary contained herein, Consolidated EBITDA of Parent Borrower and its Subsidiaries for each of the fiscal quarters set forth shall be deemed to be the amount set forth below such fiscal quarter as set forth below:
Fiscal Quarter |
|
Consolidated EBITDA
|
March 31, 2020 |
|
$16,095,000 |
June 30, 2020 |
|
$13,855,000 |
September 30, 2020 |
|
$16,843,000 |
December 31, 2020 |
|
$18,240,000 |
“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a)(i) Consolidated EBITDA minus (ii) the sum of (A) net Consolidated Cash Taxes constituting income taxes (or expense for franchise taxes in lieu of income taxes) paid or payable, and (B) Consolidated Unfinanced Capital Expenditures made, in each case, for the period of the four (4) fiscal quarters most recently ended to (b) Consolidated Fixed Charges for the period of the four (4) fiscal quarters most recently ended.
“Consolidated Fixed Charges” means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of, without duplication, (a) the cash portion of Consolidated Interest Charges (but excluding any amendment, waiver or consent fees or any other amortized financing expenses, any charges related to Indebtedness repaid on the Closing Date, and any charges related to the Series A-2 Preferred Equity) for such period plus (b) Consolidated Scheduled Funded Indebtedness Payments (excluding all Consolidated Scheduled Funded Indebtedness Payments on Indebtedness repaid on the Closing Date) paid or required to be paid for such period, plus (c) all cash payments made with respect to any Restricted Payment Notes pursuant to Section 8.06(l) (excluding, with respect to any Restricted Payment Note issued in partial or full satisfaction of an outstanding Earn-Out Obligation, cash payments of principal with respect to such Restricted Payment Note), (d) [reserved], plus (e) all cash coupon payments with respect to the Series A-2 Preferred Equity made pursuant to Section 8.06(g); provided that the cash portion of Consolidated Interest Charges shall be measured on a rolling four-quarter basis.
“Consolidated Funded Indebtedness” means the Funded Indebtedness (excluding amounts paid in connection with the financing of insurance premiums) of the Parent Borrower and its Subsidiaries on a consolidated basis.
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“Consolidated Interest Charges” means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP but excluding, to the extent otherwise included as an interest expense transaction costs related to the closing of this Agreement, including up-front fees and expenses, plus (b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP plus (c) the implied interest component of Synthetic Leases with respect to such period plus (d) all dividends, interest, premium payments, fees, charges and related expenses in connection with the Series A-2 Preferred Equity to the extent treated as interest in accordance with GAAP but excluding, to the extent otherwise included as an interest expense, transaction costs related to the closing of the Series A-2 Preferred Equity Documents, including “up-front”-like fees and expenses.
“Consolidated Net Income” means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, the net income of the Parent Borrower and its Subsidiaries for that period, as determined in accordance with GAAP; provided that Consolidated Net Income shall exclude any income (or loss) for such period of any Person if such Person is not a Subsidiary, except that the Parent Borrower’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent Borrower or a Subsidiary as a dividend or other distribution.
“Consolidated Scheduled Funded Indebtedness Payments” means for any period for the Parent Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on Funded Indebtedness, as determined in accordance with GAAP. For purposes of this definition, “scheduled payments of principal” (a) shall be determined after giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period, (b) shall be deemed to include the Attributable Indebtedness in respect of Capital Leases, Securitization Transactions and Synthetic Leases, (c) shall not include any voluntary prepayments or mandatory prepayments required pursuant to Section 2.05, and (d) shall not include any scheduled payment of principal with respect to Earn Out Obligations.
“Consolidated Total Assets” means the consolidated total assets of the Parent Borrower and its Subsidiaries determined in accordance with GAAP as of the date of the financial statements most recently delivered pursuant to Section 7.01 hereunder.
“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness to (b) Consolidated EBITDA for the period of the four (4) fiscal quarters most recently ended; provided, that for the calculation of Consolidated Total Leverage Ratio as of any date of determination, the Parent Borrower may subtract Qualified Cash held in accounts (x) provided by the Administrative Agent or (y) provided by a Lender and, after the lapse of the period set forth in Section 7.20, subject to Control Agreements in favor of the Administrative Agent.
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“Consolidated Unfinanced Capital Expenditures” means, for any period, Consolidated Capital Expenditures less all expenditures made with the proceeds of any Indebtedness or equity issuance or contribution.
“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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.
“Control Agreement” means, with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to Administrative Agent, among Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried, and the Loan Party maintaining such account or owning such entitlement or contract, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable Uniform Commercial Code or the applicable STA) over such account to the Administrative Agent (and, if applicable, such holder or representative).
“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning specified in Section 11.22.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“CTEH” means The Center for Toxicology and Environmental Health, L.L.C., an Arkansas limited liability company, and a wholly-owned Subsidiary of Parent Borrower.
“Curative Preferred Equity” means “Curative Preferred Equity” (as defined in the Series A-2 Purchase Agreement as in effect on the date hereof), so long as the same does not constitute Disqualified Stock.
“D&I Program” means the training program developed for employees of the Parent Borrower to address cultural sensitivity, unconscious bias and sexual harassment with the objective to enhance diversity and inclusion within the Parent Borrower and its Subsidiaries.
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“D&I Program Beneficiaries” means, with respect to each calendar year, the percentage of employees that have participated in a D&I Program, measured as the percentage of personnel who are employed full-time (i.e., a minimum of 30 hours per week) as of June 30 of such calendar year.
“D&I Program Margin Adjustment Amount” means, with respect to calendar year 2021, (a) negative 2.5 basis points if a D&I Program has been established and documented or (b) positive 2.5 basis points if such D&I Program has not been developed, or if a copy of such D&I Program has not been delivered to the Administrative Agent. Whereas, with respect to any subsequent calendar year, it means (a) positive 2.5 basis points if the D&I Program Beneficiaries for such calendar year as set forth in the Sustainability Report is less than 85% for such calendar year, (b) zero basis points if the D&I Program Beneficiaries for such calendar year as set forth in the Sustainability Report is more than or equal to 85% for such calendar year but less than the 95% for such calendar year and (c) negative 2.5 basis points if the D&I Program Beneficiaries for such calendar year as set forth in the Sustainability Report is more than or equal to 95% for such calendar year.
“Daily Simple SOFR” shall mean, 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.
“Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under Section 8.03.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), 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, Canada or other applicable jurisdictions from time to time in effect.
“Deeds of Hypothec” means all of the deeds of hypothec creating a hypothec in favor of the Administrative Agent, as hypothecary representative for the benefit of the Lenders, pursuant to the laws of the Province of Quebec on the assets of any Loan Party existing under the laws of the Province of Quebec, having its domicile (within the meaning of the Civil Code of Quebec) in the Province of Quebec or having a place of business or tangible property situated in the Province of Quebec, as the same may be amended, supplemented, restated or otherwise modified from time to time.
“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 be an Event of Default.
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“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) two percent (2%) per annum; provided, however, that with respect to a Eurocurrency RateSOFR Loan or a CDOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus two percent (2%) per annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus two percent (2%) per annum.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent, the Parent Borrower and with respect to the Revolving Loans, the Administrative Agent, in writing that such failure is the result of such Lender’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 L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Parent Borrower, the Administrative Agent, the L/C 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 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 Lender’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 (3) Business Days after written request by the Administrative Agent or the Parent Borrower, to confirm in writing to the Administrative Agent and the Parent Borrower 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 Parent Borrower), 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, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date
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established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Parent Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
“Designated Lender” has the meaning specified in Section 2.16.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction and any issuance of Equity Interests by a Subsidiary of such Person) of any property by any Person (including the Equity Interests of any Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business; (b) the sale, lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete or worn out property no longer used or useful in the conduct of business of any Loan Party or any Subsidiary; (c) any sale, lease, license, transfer or other disposition of property to any Loan Party or any Subsidiary (provided, that (i) if the transferor of such property is a Loan Party (A) the transferee thereof is an Unlimited Loan Party, (B) the transferee thereof is a Subsidiary that is not an Unlimited Loan Party (provided, that, all such sales, leases, licenses, transfers or other dispositions of property made pursuant to this clause (c)(i)(B) shall not exceed $500,000 in the aggregate in any fiscal year of the Parent Borrower) or (C) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02 and (ii) if the transferor of such property is a Canadian Loan Party (A) the transferee thereof must be a Canadian Loan Party or an Unlimited Loan Party, or (B) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02); (d) any Involuntary Disposition; (e) the sale or disposition of Cash Equivalents for fair market value; (f) transfers which constitute Permitted Liens; (g) the forgiveness of notes taken pursuant to Sections 8.02(i) and (o); (h) dispositions of overdue accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (i) the abandonment of IP Rights that are no longer used or useful to the conduct of the business of the Parent Borrower and its Subsidiaries as determined by the applicable Loan Party in its reasonable judgment and that are disposed of in the ordinary course of business; (j) non-exclusive outbound licenses or sublicenses of IP Rights granted by any Loan Party in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Parent Borrower and its Subsidiaries, taken as a whole; (k) leases or subleases (or licenses or sublicenses) of property (other than IP Rights) entered into in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Parent Borrower and its Subsidiaries, taken as a whole; (l) abandonment of leasehold interests in the ordinary course of business; (m) the granting, existence or creation of a Lien (but not the sale or other disposition of the property subject to such Lien) permitted by Section 8.01; (n) to the extent constituting Dispositions, Investments permitted under Section 8.02, fundamental changes permitted under Section 8.04 and Restricted Payments permitted under Section 8.06. in each case, except by reference to Section 8.05 or this definition; (o) any issuance by the Parent Borrower of any of its Equity Interests or the issuance of any Equity Interests of any Subsidiary to the Parent Borrower or another Subsidiary; (p) the unwinding of any Swap Contract permitted hereunder in accordance with its terms; (q) a Sale and Leaseback Transaction with respect to the property located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000; and (r) the temporary relocation of assets outside the U.S. or Canada, in the ordinary course of business, with an aggregate value of not greater than $20,000,000.
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“Disqualified Institution” means (i) any Person that is designated by the Borrowers, by written notice delivered to the Arrangers on or prior to the Closing Date and posted on the Platform, to the extent reasonably acceptable to the Administrative Agent as a (x) Disqualified Institution or (y) any Competitor, and mutually agreed upon by the Arrangers and the Parent Borrower or (ii) any Person that is clearly identifiable, solely on the basis of such Person’s name, as an affiliate of any Person referred to in clauses (i)(x) or (i)(y) above; provided that Disqualified Institutions shall (A) exclude any person that the Borrowers have designated as no longer being a Disqualified Institution by written notice delivered to the Administrative Agent from time to time, (B) exclude any Bona Fide Lending Affiliate, unless such Bona Fide Lending Affiliate is identified under clause (i)(x) above, and (C) subject to the exclusions in clauses (A) and (B) above, include any Competitor added by written supplement to the list of Competitors that are Disqualified Institutions delivered by the Borrowers after the date hereof to the Administrative Agent and posted on the Platform. Such supplement referred to in clause (C) in the preceding sentence shall become effective two (2) Business Days after receipt thereof by the Administrative Agent, and shall not apply retroactively to disqualify the transfer of an interest in the Loans or Commitments that was effective prior to the effective date of such supplement.
“Disqualified Stock” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Equity Interests that are not Disqualified Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable or subject to a mandatory repurchase requirement at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is one hundred eighty (180) days after the Maturity Date in effect at the time of issuance of the respective Disqualified Stock.
“DQ List” as defined in Section 11.06(g)(ii).
“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, and (b) with respect to any amount denominated in Canadian Dollars or other Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Canadian Dollars or such other Alternative Currency.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.
“Early Opt-in Election” shall mean the occurrence of both:
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(1) a notification by the Administrative Agent to (or the request by the Parent Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five (5) currently outstanding 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 Parent Borrower to trigger a fallback from Eurocurrency Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the Parent Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price adjustments, non- competition and consulting agreements, or other indemnity obligations) pursuant to the documentation relating to such Acquisition. The amount of any Earn Out Obligations at the time of determination shall be the aggregate amount, if any, of such Earn Out Obligations that are required at such time under GAAP to be recognized as liabilities on the consolidated balance sheet of the Parent Borrower.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e- mail or E- Fax, or otherwise to or from an E- System.
“Eligible Assets” means property that is used or useful in the same or a similar line of business as the Parent Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extension or expansions thereof).
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)) or for purposes of an assignment permitted pursuant to Section 10.09, any acquisition vehicle formed pursuant to Section 10.09 in connection with any credit bid.
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“Environmental Laws” means any and all federal, state, provincial, territorial, local, foreign and other applicable 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 Hazardous Materials, 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 any Loan Party or any Subsidiary 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 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 other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (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 (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. For the avoidance of doubt, Series A-2 Preferred Equity shall constitute Equity Interests of the Parent Borrower.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Borrower 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)(2) 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 Borrower or any ERISA Affiliate from a Multiple Employer Plan; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 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; or (g) 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 Borrower or any ERISA Affiliate.
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“Erroneous Payment” has the meaning assigned to it in Section 2.17(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 2.17(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 2.17(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 2.17(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 2.17(d).
“E-Signature” means the process of attaching to or logically associating with an Electronic Transmission, an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.
“E-System” means any electronic system approved by Administrative Agent, including Syndtrak®, Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by Administrative Agent, any of its Related Parties or any other Person, providing for access to data protected by passcodes or other security system.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurocurrency Base Rate” means:
(a) for any Interest Period, with respect to any Eurocurrency Rate Loan:
(i) denominated in Dollars or an Alternative Currency (other than Canadian Dollars), the offered rate per annum for deposits of Dollars or such Alternative Currency for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page (or the applicable successor page) as of 11:00 A.M. (London, England time) two (2) Business Days (or, in the case of Eurocurrency Rate Loans denominated in Pounds Sterling, on the first day of such Interest Period) prior to the first day in such Interest Period (“LIBOR”), or if no such offered rate exists, the rate of interest per annum, as determined by Administrative Agent at which deposits of Dollars or such Alternative Currency in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period by major financial institutions reasonably satisfactory to Administrative Agent in the London interbank market for such Interest Period for the applicable principal amount on such date of determination;
(ii) denominated in Canadian Dollars, the rate per annum equal to the CDOR Rate or a comparable or successor rate, which rate is approved by the Administrative Agent, that appears on the “Refinitiv Screen Canadian Dollar Offered Rate (CDOR) Page” of Reuters Monitor Money Rates Service (or such other commercially available source
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providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 10:00 a.m., Toronto, Ontario time, on the Rate Determination Date with a term equivalent to such Interest Period;
(b) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at approximately 11:00 a.m., London time, determined two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that date;
provided, that, if the Eurocurrency Base Rate shall be less than zero, such rate shall be deemed to be zero with respect to all Eurocurrency Rate Loans. Unless otherwise expressly specified herein, the Eurocurrency Base Rate shall be calculated in Dollars.
“Eurocurrency Rate” means (a) for any Interest Period with respect to any Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such Eurocurrency Rate Loan for such Interest Period by (ii) one minus the Eurocurrency Reserve Percentage for such Eurocurrency Rate Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Eurocurrency Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such Base Rate Loan for such day by (ii) one minus the Eurocurrency Reserve Percentage for such Base Rate Loan for such day.
“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, in Canadian Dollars, in Euros, in Pounds Sterling, in Australian Dollars or in an Alternative Currency. All Loans denominated in Canadian Dollars must be Eurocurrency Rate Loans. All Loans made to the Canadian Borrower must be Eurocurrency Rate Loans denominated in Canadian Dollars. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.
“Eurocurrency Reserve Percentage” means, for any day, the reserve percentage (expressed as a decimal, carried out to five (5) decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan and for each outstanding Base Rate Loan the interest on which is determined by reference to the Eurocurrency Rate, in each case, shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
“Event of Default” has the meaning specified in Section 9.01.
“Excluded Accounts” has the meaning given to it in the Security Agreement and the Canadian Security Agreement, as applicable.
“Excluded Equity Collateral” has the meaning given to it in the Security Agreement and the Canadian Security Agreement, as applicable.
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“Excluded Property” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Closing Date as contemplated by Section 7.12(b), (a) any owned real property, (b) any leased real property, (c) any property which, subject to the terms of Section 8.09, is subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, (d) the Aircraft owned by a Loan Party on the Closing Date and any other airplanes, vehicles and other assets subject to certificates of title (except to the extent a security interest therein can be perfected by the filing of a Uniform Commercial Code financing statement or the equivalent under other applicable law) and (e) all other property excluded from Collateral in the Collateral Documents.
“Excluded Subsidiary” means (a) any Subsidiary that is prohibited by any applicable Laws or contract with an unaffiliated third party as of the date of this Agreement or as of the date on which such Person becomes a Subsidiary (so long as such contractual restriction is not created in contemplation of, or in connection with, such Person becoming a Subsidiary) from providing a Guarantee of the Guaranteed Obligations, or which would require governmental (including regulatory) or third-party consent, approval, license or authorization to provide such guarantee, unless such consent, approval, license or authorization has been received (and in any event only for so long as such restriction exists) or for which the provision of such Guarantee would result in material adverse tax consequences to the Parent Borrower and its Subsidiaries (as reasonably determined by the Parent Borrower in good faith), (b) any Subsidiary acquired pursuant to an acquisition that is at the time of such acquisition an obligor with respect to secured Indebtedness that is being assumed in connection with (and is not incurred in contemplation of) such acquisition and that is permitted to be incurred hereunder and any Subsidiary thereof, in each case, to the extent and for so long as such secured indebtedness prohibits such subsidiary from providing a Guarantee of the Guaranteed Obligations, (c) any Subsidiary organized in (x) China or (y) any other jurisdiction other than a Specified Guarantee Jurisdiction, (d) Immaterial Subsidiaries and (e) any other Subsidiary with respect to which the Administrative Agent and the Parent Borrower reasonably determine that the cost and/or burden of such Subsidiary providing a Guarantee of the Guaranteed Obligations is excessive in view of the benefits to be obtained by the Lenders therefrom.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant under a Loan Document by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.08 and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligations that is attributable to Swap Contracts for which such Guaranty or security interest becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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
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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, (i) U.S. 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 Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Parent Borrower under Section 11.13) or (B) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or 3.01(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 or (ii) any Canadian federal withholding Taxes that are imposed on amounts paid or credited (or deemed to be paid or credited) to or for the account of the applicable Recipient as a result of such Recipient (A) not dealing at arm’s length (within the meaning of the ITA) with any Loan Party, or (B) being a “specified shareholder” (as defined in subsection 18(5) of the ITA) of any Loan Party or not dealing at arm’s length with such a specified shareholder for purposes of the ITA, except that neither the Administrative Agent nor any Lender (as the case may be) shall be considered to be dealing at non-arm’s length or be a specified shareholder or a Person not at arm’s length with a specified shareholder, solely as a result of such Person having received or perfected a security interest under or enforced this Agreement or any other Loan Document, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e), and (d) any withholding Taxes imposed pursuant to FATCA.
“Exigent Circumstances” means (i) an event or circumstance that materially and imminently threatens the ability of any Agent or any Lender to realize upon all or any material portion of the Collateral, such as, without limitation, fraud, fraudulent or intentional removal, concealment, or abscondment thereof, destruction or material waste thereof (other than to the extent covered by insurance), material breach of the covenant set forth in Sections 8.06, Section 8.08 and Section 8.12, the occurrence of a material adverse change in, or a material adverse effect upon, the operations, business, properties, condition (financial or otherwise) or prospects of any Loan Party or the Loan Parties and the Subsidiaries taken as a whole, (ii) an exercise by another creditor of enforcement rights or remedies with respect to all or a material portion of the Collateral, or (iii) an event or circumstance that any Agent reasonably believes renders necessary or appropriate action or exercise or remedies to prevent or mitigate the destruction of, physical harm to, impairment of or decrease in value of a material portion of the Collateral or the rights and interests of the Secured Parties (including without limitation any loss of priority of the Liens securing the Obligations).
“Existing Credit Agreement” means that certain Credit Agreement, dated as of April 13, 2020, among the Parent Borrower, the Canadian Borrower, the guarantors party thereto, the lenders party thereto, Capital One, as the administrative agent, and the other parties thereto, as amended from time to time prior to the date hereof.
“Existing Seller Indebtedness” means the unsecured Indebtedness of the Parent Borrower and its Subsidiaries identified on Schedule 8.03 attached hereto.
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“Facilities” means, at any time, a collective reference to the facilities and real properties owned, leased or operated by any Loan Party or any Subsidiary.
“Facility Office” means the office designated by the applicable Lender through which such Lender will perform its obligations under this Agreement.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing Date (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, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any treaties or intergovernmental agreements implementing the foregoing.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter” means the Fee Letter, dated as of the date hereof, between the Parent Borrower and the Administrative Agent.
“Flood Insurance Laws” means, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to EurocurrencyAdjusted Term SOFR or CDOR Rate, as applicable; provided that the Floor shall not be less than zero percent.
“Foreign Collateral Document Trigger Event” has the meaning set forth in Section 7.14(c).
“Foreign Lender” means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such 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. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
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“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (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 Lenders in accordance with the terms hereof.
“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.
“Funded 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 for borrowed money, whether current or long-term (including the Obligations) and all obligations of such Person evidenced by bonds (but excluding any undrawn surety, performance or similar bonds incurred in the ordinary course of business), debentures, notes, loan agreements or other similar instruments;
(b) all purchase money Indebtedness;
(c) the principal portion of all obligations under conditional sale or other title retention agreements relating to property purchased by such Person or any Subsidiary thereof (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);
(d) all obligations arising under letters of credit (including standby and commercial, but excluding any letters of credit which are cash collateralized or undrawn), bankers’ acceptances, bank guaranties, surety bonds (but excluding any undrawn performance bonds incurred in the ordinary course of business) and similar instruments;
(e) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), including, without limitation, seller notes and any Earn Out Obligations recognized as a liability on the balance sheet of the Parent Borrower and its Subsidiaries in accordance with GAAP;
(f) the Attributable Indebtedness of Capital Leases, Securitization Transactions and Synthetic Leases;
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(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, but excluding any Series A-2 Preferred Equity (and any accrued interest, fees, expenses or premiums in respect of such Series A-2 Preferred Equity);
(h) all Funded Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;
(i) all Guarantees with respect to Funded Indebtedness of the types specified in clauses (a) through (h) above of another Person; and
(j) all Funded Indebtedness of the types referred to in clauses (a) through (i) above 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 joint-venturer, except to the extent that such Funded Indebtedness is expressly made non- recourse to such Person.
For purposes hereof, (i) the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments shall be the maximum amount available to be drawn thereunder; and (ii) “Funded Indebtedness” shall exclude any cash management services, intercompany debt, deferred compensation, undrawn letters of credit, reimbursement obligations under performance, surety or other similar bonds, Series A-2 Preferred Equity (including any accrued dividends, fees, expenses or premiums with respect thereto), or any Indebtedness resulting from a Sale and Leaseback Transaction with respect to the property located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000 pursuant to FASB ASC 000-00-00.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.
“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 the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank).
“Government Contract Joint Venture” means any non-wholly owned Subsidiary formed to hold a specific government contract; provided that (a) no Government Contract Joint Venture shall be permitted to receive Loan proceeds directly or indirectly, (b) the Government Contract Joint Ventures do not represent more than five percent (5%) of the Parent Borrower’s and all of its direct and indirect Subsidiaries’ consolidated assets (which, for the avoidance of doubt, shall
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exclude contracts) as of the last day of the most recently ended fiscal quarter for which the Compliance Certificate has been delivered to Administrative Agent pursuant to Section 7.02(a) on an aggregate basis, (c) any Investment by Parent Borrower in any Government Contract Joint Venture shall be subject to subject to Section 8.02 hereof, (d) each Government Contract Joint Venture shall be deemed to be a “Loan Party” for purposes of Sections 6.16, 6.22, 6.24 and all related covenants, representations, and warranties set forth in this Agreement, (e) that portion of any revenue received by any Government Contract Joint Venture required to be paid to another Subsidiary of Parent Borrower shall be paid over to such other Subsidiary in accordance with the invoiced terms between the Government Contract Joint Venture and such other Subsidiary and (f) notwithstanding anything to the contrary in the definition of Subsidiary, for purposes of determining whether a Person is a non-wholly owned Subsidiary under this definition, a Subsidiary shall be deemed to include a Person which is a corporation, partnership, joint venture, limited liability company or other business entity of which 50% of the shares of Voting Stock is 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.
“Guarantee” means, as to any Person, (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 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.
“Guaranteed Obligations” has the meaning set forth in Section 4.01.
“Guarantors” means, (a) each Subsidiary of the Parent Borrower identified as a “Guarantor” on the signature pages hereto, (b) each other Person that joins as a Guarantor pursuant to Section 7.12(b), (c) with respect to (i) Obligations under any Secured Swap Agreement, (ii) Obligations under any Secured Treasury Management Agreement and (iii) any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 4.01 and 4.08) under the Guaranty, the Parent Borrower, and (d) the successors and permitted assigns of the foregoing.
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“Guaranty” means the guaranty in respect of the Obligations made by the Guarantors in favor of the Administrative Agent and the other holders of the Obligations pursuant to Article IV.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants of any nature, including petroleum or petroleum distillates, asbestos or asbestos- containing materials, polychlorinated biphenyls, radon gas, or infectious or medical wastes which are listed or regulated pursuant to any Environmental Law.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
“Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that as of the last day the period of the four (4) fiscal quarters most recently ended for which the Parent Borrower has delivered financial statements pursuant to Section 7.01(a) or (b), did not have annual gross revenue (excluding the portion of revenue that is invoiced to the Immaterial Subsidiary constituting a Government Contract Joint Venture) in excess of (i) five percent (5%) of consolidated revenue of the Parent Borrower and its Subsidiaries on an annual basis with respect to any individual Subsidiary or (ii) ten percent (10%) of consolidated revenue of the Parent Borrower and its Subsidiaries on an annual basis in the aggregate for all such Subsidiaries; provided that (x) the gross revenue of all Subsidiaries (excluding the portion of revenue that is invoiced to the Immaterial Subsidiary constituting a Government Contract Joint Venture by a Loan Party) that fall within the definition of Excluded Equity Collateral shall be included in the foregoing gross revenue tests; and (y) if any Subsidiary that would otherwise constitute an “Immaterial Subsidiary” receives a direct extension of credit under this Agreement, such Subsidiary shall cease to be an Immaterial Subsidiary.
“Impacted Loans” has the meaning specified in Section 3.03.
“Incremental Cap” has the meaning specified in Section 2.02(f).
“Incremental Term Loan” shall have the meaning provided in Section 2.01(c).
“Incremental Term Loan Commitment” means, as to each Incremental Term Loan Lender, the commitment of such Incremental Term Loan Lender to make the Incremental Term Loan hereunder pursuant to the Incremental Term Loan Lender Joinder Agreement; provided that, at any time after the funding of the Incremental Term Loan, determination of “Required Lenders” shall include the Outstanding Amount of the Incremental Term Loan.
“Incremental Term Loan Lender” means each of the Persons identified as an “Incremental Term Loan Lender” in the Incremental Term Loan Lender Joinder Agreement, together with their respective successors and assigns.
“Incremental Term Loan Lender Joinder Agreement” means a joinder agreement, substantially in the form of Exhibit I, executed and delivered in accordance with the provisions of Section 2.02(f).
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“Incremental Term Loan Maturity Date” shall be as set forth in the Incremental Term Loan Lender Joinder Agreement.
“Incremental Term Note” has the meaning specified in Section 2.11(a).
“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 Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person or a Subsidiary thereof is a general partner or joint venturer, unless such Indebtedness is expressly made non- recourse to such Person or such Subsidiary.
“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.
“Indemnitee” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding- up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case in (a) and (b) above, undertaken under U.S. federal, state or foreign law or the Debtor Relief Laws of any other jurisdiction, including the Bankruptcy Code of the United States.
“Interest Payment Date” means (a) as to any Eurocurrency RateSOFR Loan or any CDOR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date or the Incremental Term Loan Maturity Date, as applicable; provided, however, that if any Interest Period for a Eurocurrency Ratesuch Loan exceeds 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; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date or the Incremental Term Loan Maturity Date, as applicable.
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“Interest Period” means, (a) as to each Eurocurrency RateSOFR Loan, the period commencing on the date such Eurocurrency RateSOFR Loan is disbursed or converted to or continued as a Eurocurrency RateSOFR Loan and ending on the date one (1), two (2), three (3) or six (6) months (other than Eurocurrency Rate Loans determined by reference to the CDOR Rate, which shall not exceedthereafter; and (b) as to each CDOR Loan, the period commencing on the date such CDOR Loan is disbursed or continued as a CDOR Loan and ending on the date one (1) or three (3) months) thereafter (, in each case, subject to availability for the interest rate applicable to the relevant currency), as selected by the applicable Borrower in its Loan Notice; provided that:
(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 in the case of a Eurocurrency Rate Loan, 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 pertaining to a Eurocurrency Rate Loan 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;
(c) no Interest Period with respect to any Revolving Loan or Term Loan shall extend beyond the Maturity Date; and
(d) no Interest Period with respect to the Incremental Term Loan shall extend beyond the Incremental Term Loan Maturity Date. ; and
(e) no tenor that has been removed from this definition pursuant to Section 3.08 shall be available for specification in such Borrowing Notice or interest election request.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (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, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any of its Subsidiaries.
“IP Rights” has the meaning specified in Section 6.17.
“IRS” means the United States Internal Revenue Service.
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“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Issue” means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (including by failure to object to any automatic renewal on the last day such objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing. The terms “Issued” and “Issuance” have correlative meanings.
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, Master Agreement for Documentary Letters of Credit, Master Agreement for Standby Letters of Credit, and any other document, agreement and instrument entered into by the L/C Issuer and the Parent Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.
“ITA” means the Income Tax Act (Canada).
“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit E executed and delivered by a Domestic Subsidiary or a Canadian Subsidiary in accordance with the provisions of Section 7.12(b).
“Judgment Currency” has the meaning specified in Section 11.23.
“KPI Metrics” means, collectively, the D&I Program Beneficiaries, and the Media Treated Growth, each a “KPI Metric”.
“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, 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.
“LCA Test Date” has the meaning specified in Section 1.07.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means Bank of the West, or any Lender or an Affiliate thereof or a bank or other legally authorized Person, in each case, that agrees to issue Letters of Credit hereunder and is reasonably acceptable to Administrative Agent, in such Person’s capacity as an issuer of Letters of Credit hereunder.
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“L/C Obligations” means all outstanding obligations incurred by Administrative Agent and Lenders at the request of the Parent Borrower or its Subsidiaries, whether direct or indirect, contingent or otherwise, due or not due, in connection with the Issuance of Letters of Credit by L/C Issuers or the purchase of a participation as set forth in Section 2.03 with respect to any Letter of Credit. The amount of such L/C Obligations shall equal the maximum amount that may be payable by Administrative Agent and Lenders thereupon or pursuant thereto.
“L/C Reimbursement Agreement” as defined in Section 2.03(a)(iii).
“L/C Reimbursement Date” as defined in Section 2.03(e).
“L/C Reimbursement Obligations” means, for any Letter of Credit, the obligation of the Parent Borrower to the L/C Issuer thereof or to Administrative Agent, as and when matured, to pay all amounts drawn under such Letter of Credit.
“L/C Request” as defined in Section 2.03(b).
“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and their successors and permitted assigns, each Person that executes a lender joinder agreement or commitment agreement in accordance with Section 2.02(f) and each Incremental Term Loan Lender and, as the context requires, includes the Swing Line Lender. The term “Lender” shall include any Designated Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Xxxxxx’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Parent Borrower, the Administrative Agent and with respect to any Revolving Lender, the Administrative Agent.
“Letter of Credit” means any standby letters of credit Issued for the account of the Parent Borrower by L/C Issuers. Letters of Credit shall be issued in Dollars, Canadian Dollars, Australian Dollars, Euro, Pounds Sterling or other Alternative Currency.
“Letter of Credit Expiration Date” means the day that is seven (7) Business Days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.09(b).
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $20,000,000; provided that Letters of Credit issued in currencies other than Dollars shall (i) not exceed $10,000,000; and (ii) be subject to foreign exchange rates determined by the L/C Issuer and the Administrative Agent in their respective reasonable discretion. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“LIBOR” has the meaning specified in the definition of “Eurocurrency Base Rate”.
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“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest 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).
“Limited Condition Acquisition” means a Permitted Acquisition that is not conditioned on the availability of, or on obtaining, third party financing that is consummated on or prior to the date that is one hundred twenty (120) days after the date the definitive agreement for such Permitted Acquisition is executed.
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, Swing Line Loan, Term Loan or Incremental Term Loan.
“Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder Agreement, the Fee Letter, each Incremental Term Loan Lender Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 of this Agreement, the Collateral Documents, any Guaranty, and any other agreement, instrument or document designated by its terms as a “Loan Document” (but specifically excluding Secured Swap Agreements and Secured Treasury Management Agreements).
“Loan Modification Offer” has the meaning specified in Section 11.01.
“Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency RateSOFR Loans or CDOR Loans, in each case pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“Loan Parties” means, collectively, each Borrower 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.
“Mandatory Cost” means any amount incurred periodically by any Lender during the term of this Agreement which constitutes fees, costs or charges imposed on lenders generally in the jurisdiction in which such Lender is domiciled, subject to regulation, or has its Facility Office by any Governmental Authority.
“Master Agreement” has the meaning specified in the definition of “Swap Contract”.
“Master Agreement for Documentary Letters of Credit” means that certain Master Agreement for Documentary Letters of Credit, entered into between the Parent Borrower on behalf of all Loan Parties and Bank of the West, as an L/C Issuer.
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“Master Agreement for Standby Letters of Credit” means that certain Master Agreement for Standby Letters of Credit, entered into between the Parent Borrower on behalf of all Loan Parties and Bank of the West, as an L/C Issuer.
“Material Adverse Effect” means the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect (i) on the business, results of operations, properties or financial condition of Borrowers and their Subsidiaries, taken as a whole, (ii) on the enforceability of any material provision of any of the Loan Documents or (iii) on the validity or priority of the Administrative Agent’s Liens on any material portion of the Collateral; (b) impairs in any material respect the ability of the Loan Parties as a whole to perform their obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise impairs in any material respect the ability of the Administrative Agent or the Lenders to enforce or collect the Obligations or to realize upon the Collateral.
“Maturity Date” means April 27, 2026; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Media Treated Growth” means for 2021 the Water Growth multiplied by 0.50 plus the Methane Leaks Detected Growth multiplied by 0.50, whereas for any subsequent calendar year, it means the Water Growth multiplied by 0.35 plus the Methane Leaks Detected Growth multiplied by 0.35 plus the Biogas Growth multiplied by 0.30.
“Media Treated Margin Adjustment Amount” means (a) positive 2.5 basis points if the Media Treated Growth for such calendar year as set forth in the Sustainability Report is less than 91 for such calendar year, (b) zero basis points if the Media Treated Growth for such calendar year as set forth in the Sustainability Report is more than or equal to 91 for such calendar year but less than 107 for such calendar year, (c) negative 2.5 basis points if the Media Treated Growth for such calendar year as set forth in the Sustainability Report is more than or equal to 107 for such calendar year.
“Methane Leaks Detected Growth” means with respect to any calendar year, each daily full time equivalent on-site at a client facility performing leak detection and repair surveys, which shall include both EPA Method 21 as well as alternative work practice optical gas imaging work, multiplied by one hundred (100).
“Minimum Collateral Amount” means, at any time, 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 one hundred five percent (105%) of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and 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 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to one hundred five percent (105%) of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
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“Multiple Employer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions. “Multiple Employer Plan” means a Pension Plan which has two or more contributing sponsors (including any Borrower 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 the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Subsidiary in respect of any Disposition, Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions), (b) taxes paid or payable as a result thereof, (c) the amount of any reserves taken in accordance with GAAP with respect to such event (provided, that if such reserves are released, such released amounts shall constitute Net Cash Proceeds at such time) and (d) in the case of any Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall (x) include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non- cash consideration received by any Loan Party or any Subsidiary in any Disposition, Debt Issuance or Involuntary Disposition and (y) exclude any business interruption proceeds.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or the affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.
“