CREDIT AGREEMENT dated as of May 25, 2021 among DIGITAL MEDIA SOLUTIONS HOLDINGS, LLC, as Holdings, DIGITAL MEDIA SOLUTIONS, LLC, as Borrower, The Lenders and Issuing Banks Party Hereto, and TRUIST BANK as Administrative Agent, Collateral Agent, a...
EXECUTION VERSION
Deal CUSIP: 00000XXX0
Revolver Facility CUSIP: 00000XXX0
Term Loan Facility CUSIP: 00000XXX0
dated as of
May 25, 2021
among
DIGITAL MEDIA SOLUTIONS HOLDINGS, LLC,
as Holdings,
as Holdings,
DIGITAL MEDIA SOLUTIONS, LLC,
as Borrower,
The Lenders and Issuing Banks Party Hereto,
as Borrower,
The Lenders and Issuing Banks Party Hereto,
and
TRUIST BANK
as Administrative Agent, Collateral Agent, a Lender and an Issuing Bank
as Administrative Agent, Collateral Agent, a Lender and an Issuing Bank
TRUIST SECURITIES, INC. and
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
TABLE OF CONTENTS
Page
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
SCHEDULES:
Schedule 1 — Immaterial Subsidiaries
Schedule 2.01 — Commitments and Loans
Schedule 3.03 — Government Approvals; No Conflicts
Schedule 3.12 — Subsidiaries
Schedule 5.14 — Certain Post-Closing Obligations
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04(e)— Existing Investments
Schedule 6.08 — Existing Affiliate Transactions
Schedule 6.09 — Existing Restrictions
Schedule 9.01 — Notices
EXHIBITS:
Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Guarantee Agreement
Exhibit C — Form of Perfection Certificate
Exhibit D — Form of Collateral Agreement
Exhibit E — [Reserved]
Exhibit G — Form of Interest Election Request
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Exhibit H — [Reserved]
Exhibit I — Form of Intercompany Note
Exhibit J — Form of Specified Discount Prepayment Notice
Exhibit K — Form of Specified Discount Prepayment Response
Exhibit L — Form of Discount Range Prepayment Notice
Exhibit M — Form of Discount Range Prepayment Offer
Exhibit N — Form of Solicited Discounted Prepayment Notice
Exhibit O — Form of Solicited Discounted Prepayment Offer
Exhibit P — Form of Acceptance and Prepayment Notice
Exhibit Q-1 — Form of United States Tax Compliance Certificate 0
Xxxxxxx X-0 — Xxxx xx Xxxxxx Xxxxxx Tax Compliance Certificate 0
Xxxxxxx X-0 — Xxxx xx Xxxxxx Xxxxxx Tax Compliance Certificate 0
Xxxxxxx X-0 — Xxxx xx Xxxxxx Xxxxxx Tax Compliance Certificate 4
Exhibit R — Form of Note
Exhibit S — Form of Borrowing Request
Exhibit T — Form of Letter of Credit Request
Exhibit U — Form of Compliance Certificate
iii
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
CREDIT AGREEMENT dated as of May 25, 2021 (this “Agreement”), among DIGITAL MEDIA SOLUTIONS HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), DIGITAL MEDIA SOLUTIONS, LLC, a Delaware limited liability company (the “Borrower”), the LENDERS and ISSUING BANKS party hereto and TRUIST BANK, as administrative agent (the “Administrative Agent”), Collateral Agent, a Lender and an Issuing Bank.
PRELIMINARY STATEMENTS
The Borrower has requested that the applicable Lenders extend credit to the Borrower in the form of (i) the Initial Term Loan in an initial aggregate principal amount of $225,000,000 and (ii) the Revolving Commitments in an aggregate amount of $50,000,000. The Revolving Credit Facility may include the issuance of one or more Letters of Credit from time to time.
The proceeds of the Initial Term Loan and the proceeds of the Revolving Loans not to exceed $5,000,000 utilized on the Closing Date, will be used (i) to repay in full all existing indebtedness under that certain Credit Agreement, dated as of July 3, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Credit Agreement”), among Holdings, the Borrower, each of the Borrower’s subsidiaries party thereto as borrowers, the various financial institutions party thereto and Monroe Capital Management Advisors, LLC, as administrative agent and lead arranger, and all commitments thereunder will be terminated, and all liens and guarantees in support thereof will be terminated or released (collectively, the “Refinancing”), (ii) to pay the Transaction Costs and (iii) for working capital and general corporate purposes of the Borrower and its Subsidiaries. The transactions described in the immediately preceding sentence are collectively referred to herein as the “Transactions”.
After the Closing Date, the proceeds of the Revolving Loans, Swing Loans and Letters of Credit will be used for working capital and general corporate purposes, including the funding of Permitted Acquisitions, other permitted Investments and/or any other transaction not prohibited by the terms of this Agreement.
The parties hereto agree as follows:
Article I.
DEFINITIONS
DEFINITIONS
Section i.Defined Terms.
As used in this Agreement, the following terms have the meanings specified below:
1.“Acceptable Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(2).
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
2.“Acceptable Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(3).
3.“Acceptance and Prepayment Notice” means an irrevocable written notice from a Term Lender accepting a Solicited Discounted Prepayment Offer to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 2.11(a)(ii)(D) substantially in the form of Exhibit P.
4.“Acceptance Date” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(2).
5.“Accepting Lenders” has the meaning assigned to such term in Section 2.24(a).
6.“Additional Lender” means any Additional Revolving Lender or any Additional Term Lender, as applicable.
7.“Additional Revolving Lender” means, at any time, any bank, financial institution or other institutional lender or investor that agrees to provide any portion of any (a) Incremental Revolving Commitment Increase pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness in the form of an Other Revolving Commitment pursuant to a Refinancing Amendment in accordance with Section 2.21; provided that each Additional Revolving Lender shall be subject to the approval of the Administrative Agent (and, if such Additional Revolving Lender will provide an Incremental Revolving Commitment Increase, the Swing Line Lender and each Issuing Bank), in each case only if such consent would be required under Section 9.04(b) for an assignment of Revolving Loans or Revolving Commitments, as applicable, to such bank, financial institution or other institutional lender or investor (such approval in each case not to be unreasonably withheld, conditioned or delayed) and the Borrower.
8.“Additional Term Lender” means, at any time, any bank, financial institution or other institutional lender or investor that agrees to provide any portion of any (a) Incremental Term Loans pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness in the form of an Other Revolving Term Loans pursuant to a Refinancing Amendment in accordance with Section 2.21; provided that each Additional Term Lender shall be subject to the approval of the Administrative Agent if such consent would be required under Section 9.04(b) for an assignment of Term Loans or Term Commitments, as applicable, to such bank, financial institution or other institutional lender or investor (such approval not to be unreasonably withheld, conditioned or delayed) and the Borrower.
9.“Adjusted LIBO Rate” means, with respect to each Interest Period for a Eurodollar Borrowing, (i) the rate per annum equal to the London interbank offered rate for deposits in U.S. dollars appearing on Reuters screen page LIBOR 01 (or on any successor or substitute page of such service or any successor to such service, or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
first day of such Interest Period, with a maturity comparable to such Interest Period (provided that if such rate is less than 0.75% per annum, such rate shall be deemed to be 0.75% per annum), divided by (ii) a percentage equal to 1.00 minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves and without benefit of credits for proration, exceptions or offsets that may be available from time to time) expressed as a decimal (rounded upward to the next 1/100th of 1%) applicable to any member bank of the Federal Reserve System in respect of Eurodollar liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided that if the rate referred to in clause (i) above is not available at any such time for any reason, then the rate referred to in clause (i) shall instead be the interest rate per annum, as determined by the Administrative Agent, to be the arithmetic average of the rates per annum at which deposits in U.S. dollars in an amount equal to the amount of such Eurodollar Borrowing are offered by major banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time), two (2) Business Days prior to the first day of such Interest Period. For purposes of this Agreement, the Adjusted LIBO Rate will not be less than 0.75% per annum.
10.“Administrative Agent” means Truist Bank, in its capacity as administrative agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in Article VIII.
11.“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
12.“Affected Class” has the meaning assigned to such term in Section 2.24(a).
13.“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
14.“Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.
15.“Agent” means the Administrative Agent and the Collateral Agent, and any successors and assigns in such capacity, and “Agents” means two or more of them.
16.“Agent Parties” has the meaning given to such term in Section 9.01(c).
17.“Agent-Related Distress Event” means, with respect to the Agent or any Person that directly or indirectly Controls the Agent (each, a “Distressed Agent-Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent-Related Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Agent or any
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Person that directly or indirectly Controls the Administrative Agent by a Governmental Authority or an instrumentality thereof.
18.“Agreement” has the meaning given to such term in the preliminary statements hereto.
19.“Anti-Corruption Laws” means all applicable laws, rules and regulations from time to time concerning or relating to bribery, corruption, or similar unlawful payments, including the FCPA.
20.“Applicable Account” means, with respect to any payment to be made to the Administrative Agent hereunder, the account specified by the Administrative Agent from time to time for the purpose of receiving payments of such type.
21.“Applicable Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(2).
22.“Applicable Fronting Exposure” means, with respect to any Person that is an Issuing Bank at any time, the sum of (a) the aggregate amount of all Letters of Credit issued by such Person in its capacity as an Issuing Bank (if applicable) that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements made by such Person in its capacity as an Issuing Bank (if applicable) that have not yet been reimbursed by or on behalf of the Borrower at such time.
23.“Applicable Percentage” means, at any time with respect to any Revolving Lender, the percentage of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time (or, if the Revolving Commitments have terminated or expired, such Lender’s share of the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding any such Defaulting Lender’s Revolving Commitment) represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments pursuant to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.
24.“Applicable Rate” means a percentage per annum equal to (i) (A) for Eurodollar Loans that are Revolving Loans, 4.25% and (B) for Base Rate Loans that are Revolving Loans or Swing Loans, 3.25% and (ii)(A) for Eurodollar Loans that are Initial Term Loans, 5.00% and (B) for Base Rate Loans that are Initial Term Loans, 4.00%.
25.Notwithstanding the foregoing, (i) the Applicable Rate in respect of any Class of extended Revolving Commitments or any extended Term Loans or Revolving Loans made pursuant to any extended Revolving Commitments shall be the applicable percentages per annum set forth in the relevant extension amendment, (ii) the Applicable Rate in respect of any Class of Incremental Term Loans shall be the applicable percentage per annum set forth in the
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
relevant Incremental Facility Amendment, (iii) the Applicable Rate in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant agreement, (iv) the Applicable Rate in respect of any Class of Refinancing Revolving Commitments, any Class of Refinancing Revolving Credit Loans or any Class of Refinancing Term Loans shall be the applicable percentages per annum set forth in the applicable Refinancing Amendment and (v) in the case of the Initial Term Loans, the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14.
26.“Approved Bank” has the meaning assigned to such term in the definition of “Permitted Investments.”
27.“Approved Foreign Bank” has the meaning assigned to such term in the definition of “Permitted Investments.”
28.“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
29.“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
30.“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 9.04), substantially in the form of Exhibit A or any other form reasonably approved by the Administrative Agent.
31.“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.11(a)(ii)(A); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
32.“Audited Financial Statements” means the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal years ended December 31, 2020 and December 31, 2019 and the related consolidated statements of income, statements of shareholders’ equity and statements of cash flows of the Company and its Subsidiaries, including the notes thereto.
33.“Available Amount” means, as of any date of determination, a cumulative amount equal to (without duplication):
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(a)the greater of (i) $14,000,000 and (ii) 20.0% of Consolidated EBITDA for the most recently completed Test Period calculated on a Pro Forma Basis (the “Starter Basket”), plus
(b)the remainder of (A) the sum of an amount (which amount shall not be less than zero) equal to the sum of Excess Cash Flow (but not less than zero in any period) for the fiscal year ending on December 31, 2022 and Excess Cash Flow for each succeeding completed fiscal year as of such date, in each case, that was not required to prepay Term Borrowings pursuant to Section 2.11(d) or other secured pari passu term Indebtedness as permitted by such Section 2.11(d) minus (B) the aggregate amount by which the required payment of Term Borrowings pursuant to Section 2.11(d) for any fiscal year has been reduced by operation of the first proviso to such Section 2.11(d), plus
(c)to the extent not included in Consolidated Net Income or otherwise refreshing another basket under Section 6.04, returns, profits, distributions and similar amounts (whether by means of a sale or other disposition, a repayment of a loan or advance, a dividend or otherwise) received in cash or Permitted Investments by the Borrower and its Restricted Subsidiaries (other than tax distributions or similar amounts) on Investments made using the Available Amount, plus
(d)Investments of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary made using the Available Amount that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the lesser of (i) the fair market value determined in good faith by the Borrower of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (ii) the fair market value as reasonably determined in good faith by the Borrower of the original Investment by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary), plus
(e)to the extent not included in Consolidated Net Income or otherwise refreshing another basket under Section 6.04, the Net Proceeds of a sale or other Disposition of any Unrestricted Subsidiary or joint venture (including the issuance of stock of an Unrestricted Subsidiary or joint venture) the Investment in which was made using the Available Amount received in cash or Permitted Investments by the Borrower or any Restricted Subsidiary, plus
(f)to the extent not included in Consolidated Net Income or otherwise refreshing another basket under Section 6.04, dividends or other distributions or returns on capital received by the Borrower or any Restricted Subsidiary in cash from an Unrestricted Subsidiary or joint ventures the Investment in which was made using the Available Amount (unless otherwise excluded pursuant to Section 6.07(a)(vi)(A) or constituting a tax distribution and similar amounts), plus
(g)the aggregate amount of any Retained Declined Proceeds since the Closing Date, plus
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(h)the Net Proceeds of new public or private issuances of Qualified Equity Interests of any parent of the Borrower which are received in cash and are contributed to the common equity of the Borrower, in each case, after the Closing Date and are Not Otherwise Applied, plus
(i)capital contributions received in cash or Permitted Investments by Holdings and contributed to the common equity of the Borrower, in each case, after the Closing Date (other than in respect of any Disqualified Equity Interest) and are Not Otherwise Applied, plus
(j)the Net Proceeds received in cash by Holdings (to the extent contributed to the common equity of the Borrower), the Borrower or any Restricted Subsidiary from Indebtedness and Disqualified Equity Interest issuances issued after the Closing Date and which have been exchanged or converted into Qualified Equity Interests of Holdings or any parent of Holdings and are Not Otherwise Applied, minus
(k)any Investment made pursuant to Section 6.04(m)(B), any Restricted Payment made pursuant to Section 6.07(a)(vii)(B) or any payment made pursuant to Section 6.07(b)(iv)(B) during the period commencing on the Closing Date and ending on such date of determination,
provided that, in no event, shall the Available Amount include (i) any Cure Amounts, (ii) any proceeds of an IPO or (iii) any other equity proceeds as provided in Sections 6.04(b), 6.07(a)(v), 6.07(a)(viii) and 6.07(a)(xiv).
34.“Available Tenor” means, 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 clause (f) of Section 2.14.
35.“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.
36.“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 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).
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
37.“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
38.“Base Rate” means for any day a rate per annum equal to the highest of (i) the rate of interest which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time (the “Prime Rate”), (ii) the Federal Funds Rate, as in effect from time to time, plus 0.50%, (iii) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month, plus 1.00% (any changes in such rates to be effective as of the date of any change in such rate), and (iv) 1.75%. The Administrative Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s prime lending rate. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate, or the Adjusted LIBO Rate will be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate, or the Adjusted LIBO Rate.
39.“Benchmark” means, initially, the Adjusted LIBO Rate; 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 occurred with respect to Adjusted LIBO Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 2.14.
40.“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)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;
(3)the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (A), 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
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
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 (A) of this definition (subject to the first proviso above). If the Benchmark Replacement as determined pursuant to clause (A), (B) or (C) 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;
provided further, that, in all cases the Administrative Agent and the Borrower shall use commercially reasonable efforts (taking into account any potential adverse Tax consequences to the Borrower, any of its Affiliates, or any of their respective direct or indirect beneficial owners) to use a Benchmark Replacement that is a “qualified rate” within the meaning of Proposed Treasury Regulations section 1.1001-6(b) (or any successor or final version of such regulation).
41.“Benchmark Replacement Adjustment” means, 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)for purposes of clauses (A) and (B) 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;
(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 (C) 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 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
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated 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.
42.“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 lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (in consultation with the Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary (in consultation with the Borrower) in connection with the administration of this Agreement and the other Loan Documents).
43.“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1)in the case of clause (A) or (B) 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 (C) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(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 2.14(c); 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
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
44.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) 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).
45.“Benchmark Transition Event” means 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 Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) 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 longer representative.
46.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).
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
47.“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (A)(1) or (A)(2) of the definition of “Benchmark Replacement Date” has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.
48.“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
49.“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
50.“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
51.“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b) in the case of any limited liability company, the board of managers, board of directors, manager or managing member of such Person or the functional equivalent of the foregoing or any committee thereof duly authorized to act on behalf of such board, manager or managing member, (c) in the case of any partnership, the board of directors or board of managers of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.
52.“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America.
53.“Bookrunners” means Truist Securities, Inc. and Fifth Third Bank, National Association. (each, a “Bookrunner”).
54.“Borrower” has the meaning assigned to such term in the introductory paragraph hereto, including (if applicable) a Successor Borrower.
55.“Borrower Materials” has the meaning assigned to such term in Section 5.01.
56.“Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to Section 2.11(a)(ii)(B).
57.“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Term Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.11(a)(ii)(D).
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
58.“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Term Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Section 2.11(a)(ii)(C).
59.“Borrowing” means Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
60.“Borrowing Minimum” means (a) in the case of a Eurodollar Borrowing, $1,000,000, (b) in the case of a Base Rate Borrowing (other than Swing Loan), $500,000 and (c) in the case of a Swing Loan, $250,000.
61.“Borrowing Multiple” means (a) in the case of a Eurodollar Borrowing, $1,000,000, (b) in the case of an Base Rate Borrowing (other than Swing Loan), $500,000 and (c) in the case of a Swing Loan, $50,000.
62.“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03.
63.“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Requirements of Law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
64.“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. For purposes of Section 6.02, a Capital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and such property shall be deemed to be owned by the lessee.
65.“Capitalized Leases” means all leases that have been, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.
66.“Cash Management Obligations” means (a) obligations of Holdings, the Borrower or any Restricted Subsidiary in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services or any automated clearing house transfers of funds and (b) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
67.“Cash Management Services” has the meaning assigned to such term in the definition of “Secured Cash Management Obligations.”
68.“Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
69.“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
70.“Change in Law” means: (a) the adoption of any rule, regulation, treaty or other law after the date of this Agreement, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided, that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, implemented, promulgated or issued.
71.“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 Exchange Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock of Holdings representing more than 35% of the total Voting Stock of Holdings; (b) Holdings ceases to, directly or indirectly, own and control 100% of each class of the outstanding Equity Interests of the Borrower; or (c) the occurrence of a “Change of Control” (or similar event, however denominated), as defined in the documentation governing any First Lien Indebtedness, Permitted Ratio Debt or Junior Financing that is Material Indebtedness.
72.“Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Other Revolving Loans, Swing Loans, Term Loans, Incremental Term Loans or Other Term Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, Other Revolving Commitment, Swing Line Commitment, Term Commitment or Other Term Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Other Term Commitments, Other Term Loans, Other Revolving Commitments (and the Other Revolving Loans made pursuant thereto) and
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Incremental Term Loans that have different terms and conditions shall be construed to be in different Classes.
73.“Closing Date” means May 25, 2021.
74.“Code” means the Internal Revenue Code of 1986, as amended from time to time.
75.“Collateral” means any and all assets, whether real or personal, tangible or intangible, on which Liens have been (or are purported to be) granted pursuant to any of the Security Documents as security for the Secured Obligations.
76.“Collateral Agent” has the meaning given to such term in Section 8.01(b) and its successors in such capacity as provided in Article VIII.
77.“Collateral Agreement” means the Collateral Agreement among the Borrower, each other Loan Party and the Collateral Agent, substantially in the form of Exhibit D.
78.“Collateral and Guarantee Requirement” means, at any time, the requirement, subject to Section 5.14, that:
(a)the Administrative Agent shall have received from (i) Holdings, the Borrower and each of the Restricted Subsidiaries (other than any Excluded Subsidiary) either (x) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Guarantee Agreement, in substantially the form specified therein, duly executed and delivered on behalf of such Person, (ii) Holdings, the Borrower and each Subsidiary Loan Party either (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Subsidiary Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement, in substantially the form specified therein, duly executed and delivered on behalf of such Person, in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Closing Date, to the extent reasonably requested by the Administrative Agent, opinions and documents of the type referred to in Sections 4.01(b), 4.01(c), 4.01(d) and 4.01(f) and (iii) Holdings, the Borrower and each Subsidiary Loan Party, a counterpart of, or joinder too, as applicable, of each Intercreditor Agreement, if any, then in effect), in each case, in substantially the form specified therein;
(b)all outstanding Equity Interests of the Borrower and each Restricted Subsidiary (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Loan Party, shall have been pledged pursuant to the Collateral Agreement, and the Administrative Agent shall have received certificates, if any, or other instruments, if any, representing all such Equity Interests (other than such Equity Interests constituting
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Excluded Assets), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of any obligor in a principal amount of $3,500,000 or more is owing by such obligor to any Loan Party (or, when aggregated with all other such Indebtedness owed to any Loan Party by any such obligors, exceed a principal amount of $7,500,000 in the aggregate) and such Indebtedness is evidenced by a promissory note, such promissory note shall be pledged pursuant to the Collateral Agreement, and the Administrative Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that the foregoing delivery requirement with respect to any such indebtedness of Holdings, the Borrower or any Subsidiary owing to any Loan Party may be satisfied by delivery of the Intercompany Note executed by all Loan Parties as payees and all such obligors as payors;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements and Intellectual Property Security Agreements required by this Agreement, the Security Documents, Requirements of Law and reasonably requested by the Administrative Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, this Agreement, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording; and
(e)the Administrative Agent shall have received with respect to each Material Real Property (i) counterparts of a Mortgage with respect to such Material Real Property duly executed and delivered by the record owner of such Mortgaged Property (it being understood that if a mortgage tax will be owed on the entire amount of the Indebtedness evidenced hereby, the Administrative Agent will cooperate with the Borrower or the other applicable Loan Party in order to minimize the amount of mortgage tax payable in connection with such Mortgage as permitted by, and in accordance with, applicable law including, to the extent permitted by applicable law, limiting the amount secured by such Mortgage to the book value of the respective Mortgaged Property (as reasonably determined in good faith by the Borrower) at the time such Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such book value), (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.02, together with such customary lender’s endorsements (other than a creditor’s rights endorsement) as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates (it being agreed that the Administrative Agent shall accept zoning reports from a nationally recognized zoning company in lieu of zoning endorsements to such title insurance policies), in an
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
amount equal to the book value of such Mortgaged Property or as otherwise reasonably agreed by the Borrower and the Administrative Agent; provided that in no event will the Borrower be required to obtain independent appraisals of such Mortgaged Properties, unless required by FIRREA, (iii) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property, and if any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be located in special flood hazard area, a duly executed notice about special flood hazard area status and flood disaster assistance and evidence of such flood insurance as provided in Section 5.07(b), (iv) opinions, addressed to the Administrative Agent and the Secured Parties, from counsel qualified to opine in each jurisdiction where a Mortgaged Property is located regarding the enforceability of the Mortgage and such other matters as may be in form and substance reasonably satisfactory to the Administrative Agent, (v) a new survey in form and substance reasonably acceptable to the Administrative Agent or existing survey together with a no change affidavit of such Mortgaged Property, sufficient for the title insurance company to remove the standard survey exceptions and issue the survey related endorsements and otherwise reasonably satisfactory to the Administrative Agent, and (vi) evidence of payment of title insurance premiums and expenses and all recording, mortgage, transfer and stamp taxes and fees payable in connection with recording the Mortgage, any amendments thereto and any fixture filings in appropriate county land office(s).
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, any Excluded Subsidiary or any particular assets of the Loan Parties that constitute Excluded Assets. In addition, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Borrower and the other Loan Parties shall not be required, nor shall the Administrative Agent be authorized, (i) to perfect the above-described pledges, security interests and mortgages or any other pledge, security interest or mortgage granted in connection with the Loan Documents by any means other than by (A) the filing of Uniform Commercial Code financing statements in the applicable filing offices, (B) the filing of any Mortgage with respect to real property that constitutes Collateral, (C) filings in the United States Patent and Trademark Office or the United States Copyright Office for United States Intellectual Property that constitutes Collateral, and (D) taking possession of any stock certificates or intercompany or other notes or instruments that constitute Collateral, (ii) to enter into any deposit account control agreement, securities account control agreement or other control agreement with respect to any deposit account, securities account or other asset (other than in respect of Equity Interests of Subsidiaries that constitute an “uncertificated security” within the meaning of Article 8 of the UCC) requiring perfection through control agreements or (iii) to take any action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction to create any security interests in assets located or titled outside of the United States or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than the United States, any
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
State thereof or the District of Columbia). The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, in the event that a Foreign Subsidiary becomes a Loan Party (which shall only occur with the prior written consent of the Borrower (in its sole discretion)), such Foreign Subsidiary shall grant a perfected lien on substantially all of its assets pursuant to arrangements reasonably agreed between the Agent and the Borrower, subject to customary limitations in such jurisdiction as may be reasonably agreed between the Agent and the Borrower, and nothing in the definitions of “Collateral and Guarantee Requirement” and “Excluded Assets” or other limitation in this Agreement shall in any way limit or restrict the pledge of assets and property by any such Foreign Subsidiary that is a Loan Party or the pledge of the Equity Interests of such Foreign Subsidiary by any other Loan Party that holds such Equity Interests.
79.“Commitment” means with respect to any Lender, its Revolving Commitment, Other Revolving Commitment of any Class, Term Commitment, Other Term Commitment of any Class or any combination thereof (as the context requires).
80.“Commitment Fee Percentage” means a percentage per annum equal to 0.50%.
81.“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
82.“Company” means Digital Media Solutions, Inc.
83.“Compliance Certificate” means the certificate required to be delivered pursuant to Section 5.01(e) or 5.01(h), as applicable, substantially in the form of Exhibit U or such other form agreed to by the Administrative Agent in its reasonable discretion.
84.“Consolidated EBITDA” means, for any period, with respect to Holdings and its Restricted Subsidiaries on a consolidated basis, the sum of:
(a)Consolidated Net Income for such period; plus
(b)the sum of the following amounts for such period in respect of Holdings and its Restricted Subsidiaries which, in the determination of Consolidated Net Income for such period, has been deducted (or, in the case of amounts pursuant to clause (vii) below, not already included in Consolidated Net Income), without duplication:
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(i)total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, and bank and letter of credit, letter of guaranty and bankers’ acceptance fees and costs of surety bonds in connection with financing activities, and (A) annual agency fees paid to the Administrative Agent, the Collateral Agent and any administrative agents or collateral agents under any credit facilities or notes facilities, (B) costs associated with obtaining hedging agreements and breakage costs in respect of hedging agreements related to interest rates), (C) any expense resulting from the discounting of any indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any Permitted Acquisition, (D) penalties and interest relating to taxes, (E) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities and any other amounts of non-cash interest, (F) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any Permitted Acquisitions after the Closing Date, (G) any accretion of accrued interest on discounted liabilities and any prepayment premium or penalty, (H) interest expense attributable to any direct or indirect parent of Holdings resulting from push-down accounting and (I) any lease, rental or other expense in connection with any lease that is not a capital lease obligation;
(ii)provision for taxes based on income, revenues, profits or capital, including federal, foreign, state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period, including (A) penalties and interest related to such taxes or arising from any tax examinations, (B) pursuant to any tax sharing arrangement for such period and (C) Tax Distributions;
(iii)depreciation and amortization expense (including amortization of intangible assets) for such period;
(iv)Non-Cash Charges;
(v)costs, charges, accruals, reserves or expenses attributable to the undertaking and implementation of cost savings initiatives, operating expense reductions and other cost synergies and similar initiatives, integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, facilities opening and pre-opening, business optimization and other restructuring costs (including those related to tax restructurings), charges, accruals, reserves and expenses (including inventory optimization programs, software development costs, systems implementation and upgrade expenses), costs related to the closure or consolidation of facilities (including but not limited to severance, rent termination costs, moving costs and legal costs) and curtailments, for such period; provided that the aggregate amount
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
of addbacks in reliance on this clause (v) for any Test Period shall not exceed 25.0% of Consolidated EBITDA (calculated before giving effect to this clause (v));
(vi) [reserved];
(vii)the amount of pro forma “run rate” net cost savings, operating expense reductions, other operating improvements and cost synergies (collectively, “Expected Cost Savings”) projected by the Borrower in good faith to be realized (calculated on a pro forma basis as though such items had been realized on the first day of the applicable Test Period) as a result of actions taken or to be taken in connection with the Transactions, acquisitions, dispositions or any other Specified Transaction, any restructuring, cost savings initiative, or other operations initiative, as applicable, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions; provided that (A) such cost savings, operating expense reductions, other operating improvements and cost synergies are reasonably identifiable, factually supportable and projected by the Borrower in good faith to be realized within twenty-four (24) months after the consummation of the Transactions, acquisitions, dispositions or any other Specified Transaction, any restructuring, cost savings initiative, or other operations initiative, as applicable, which is expected to result in the Expected Cost Savings, (B) no Expected Cost Savings shall be added pursuant to this clause (vii) to the extent duplicative of any items otherwise added in calculating Consolidated EBITDA for such period, (it being understood and agreed that “run rate” shall mean the full annual recurring benefit that is associated with any action taken) and (C) the aggregate amount of addbacks in reliance on this clause (vii) for any Test Period shall not exceed 25.0% of Consolidated EBITDA (calculated before giving effect to this clause (vii));
(viii) [reserved];
(ix) any costs or expenses incurred pursuant to any management equity plan, long term incentive plan or share or unit option plan or any other management or employee benefit plan or agreement or share or unit subscription or shareholder or similar agreement, during such period, and (B) the amount of expenses for such period relating to payments made to option holders or related equity holders of Holdings (or any direct or indirect parent thereof) or the Borrower in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted by the Loan Documents; provided that, in the case of clauses (A) and (B), to the extent such costs or expenses are paid in cash, such costs or expenses shall have been funded with cash proceeds contributed to the capital of Holdings or the net
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
cash proceeds of any issuance of Equity Interests (other than Disqualified Equity Interests) in Holdings (or any direct or indirect parent thereof);
(x)fees, costs and expenses incurred in connection with the Transactions;
(xi)transaction fees, costs and expenses incurred, or amortization thereof, during such period in connection with any Permitted Acquisition or other Investment permitted under this Agreement, any disposition, any casualty event, any recapitalization, any merger (including any amalgamation, consolidation, dissolution or liquidation), any option buyout, any incurrence, repayment or refinancing of any Indebtedness permitted under this Agreement, any issuance of Equity Interests or any amendments or waivers of the Loan Documents or any agreements or instruments relating to any other indebtedness permitted hereunder or any transactions similar to the foregoing (including any similar transaction that has occurred prior to the Closing Date), in each case, whether or not consummated;
(xii)cash expenses relating to contingent or deferred payments in connection with any Permitted Acquisition or other Investment permitted under this Agreement or any Permitted Acquisition or Investment permitted under this Agreement consummated prior to its effective date (including earn-outs, contingent consideration, non-compete payments, consulting payments and similar obligations), to the extent included in the calculation of Consolidated Net Income in accordance with GAAP as an accounting adjustment for such period to the extent that the actual amount payable or paid in respect of such contingent or deferred payments exceeds the liability booked by the applicable person;
(xiii) charitable contributions made by, and consulting and legal fees and expenses incurred by, Holdings or any of its Restricted Subsidiaries during such period that are not directly attributable to the operational performance or main business activities of Holdings and its Restricted Subsidiaries; provided that the aggregate amount of addbacks in reliance on this clause (xiii) for any Test Period shall not exceed $750,000;
(xiv)the amount of fees, expense reimbursements and indemnities paid to directors, including directors of Holdings (or any direct or indirect parent thereof);
(xv)cash receipts (or any netting arrangements resulting in reduced cash expenses) during such period not included in Consolidated EBITDA in any prior period to the extent non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (c) below for any prior period and not added back;
(xvi)the amount of any expense or deduction associated with any Restricted Subsidiary that is attributable to any non-controlling interest and/or minority interest of any third party; and
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(xvii)to the extent that any Parent Specified Expenses would have been added back to Consolidated EBITDA pursuant to clauses (i) through (xvi) above had such expense been incurred directly by Holdings and its Restricted Subsidiaries, such Parent Specified Expenses, minus
(c)the sum of the following amounts for such period which, in the determination of Consolidated Net Income for such period, has been included for:
(i)any non-cash gains or income (other than the accrual of revenue in the ordinary course and any non-cash gains to the extent it represents the reversal of an accrual of reserve for a potential cash item that accrued Consolidated EBITDA in a prior period) during such period, but excluding any such items in respect of which cash was received in a prior period or will be received in a future period, in each case, to the extent not included in Consolidated EBITDA;
(ii)the amount of income or gain associated with any Restricted Subsidiary that is attributable to any non-controlling interest and/or minority interest of any third party;
(iii)the excess of actual cash rent paid over rent expense during such period due to the use of straight-line rent for GAAP purposes; and
(iv)gains during such period in connection with earn-outs and other deferred payments in connection with any acquisitions or investments, to the extent included in the calculation of Consolidated Net Income in accordance with GAAP as an accounting adjustment to the extent that the actual amount payable or paid in respect of such earn-outs or other deferred payments is less than the liability booked by the applicable person therefor; minus
(d)to the extent not deducted in Consolidated Net Income during such period, all cash payments made during such period on account of non-cash charges that were added back in calculating Consolidated EBITDA for a prior period in reliance on the proviso of the definition of “Non-Cash Charges” with respect to clause (b)(iv) above.
Notwithstanding anything herein to the contrary, Consolidated EBITDA (before giving effect to any pro forma adjustments) shall be deemed to be (i) $17,010,000 for the fiscal quarter ended June 30, 2020, (ii) $16,612,000 for the fiscal quarter ended September 30, 2020, (iii) $20,313,000 for the fiscal quarter ended December 31, 2020 and (iv) $16,990,000 for the fiscal quarter ended March 31, 2021.
85.“Consolidated First Lien Indebtedness” means, as of any date of determination, the aggregate amount of Consolidated Total Indebtedness that constitutes First Lien Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP.
86.“Consolidated Net Income” means, for any period, an amount equal to:
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(a)the net income (or loss) of Holdings and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP (adjusted to reflect any Parent Specified Expenses during such period as though such Parent Specified Expenses had been incurred by Holdings and its Restricted Subsidiaries); provided that (i) any net income (loss) of any person that is not Holdings or a Subsidiary (including any Unrestricted Subsidiary) or that is accounted for by the equity method of accounting, shall be excluded, except that such net income shall be included up to the aggregate amount of dividends, distributions or other payments paid in cash to Holdings or a Restricted Subsidiary during such period, (ii) the net income (or loss) of any person accrued prior to the date it becomes a Restricted Subsidiary or is merged, amalgamated or consolidated with or into Holdings or any other Restricted Subsidiary shall be excluded (except to the extent required for any calculation of Consolidated EBITDA on a pro forma basis), (iii) the cumulative effect of a change in accounting principles during such period shall be excluded, (iv) the accounting effects during such period of adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP (including the effects of such adjustments pushed down to Holdings and its Restricted Subsidiaries), and all other impacts of the application of purchase accounting, as a result of any acquisition shall be excluded, (v) the net after-tax gains, income, losses, expenses or charges for such period attributable to (A) disposed, abandoned or discontinued operations (other than assets held for sale) and (B) any disposition of assets by Holdings or any Restricted Subsidiary, other than dispositions of inventory and other dispositions in the ordinary course of business, shall be excluded, (vi) extraordinary (as defined in GAAP as in effect prior to FASB update No. 2015-07), unusual or nonrecurring gains, income, charges, expenses or losses (and any accruals or reserves in respect of any extraordinary, unusual or nonrecurring items) for such period shall be excluded, (vii) any non-cash charges or expenses resulting from any employee benefit or management compensation plan, other non-cash compensation or the grant of stock and stock options or other equity and equity based interests to employees of Holdings (or any direct or indirect parent thereof), the Borrower or any other Restricted Subsidiary pursuant to a written plan or agreement or the treatment of such options or other equity and equity based interests under variable plan accounting, for such period shall be excluded, (viii) any charges, expenses, losses and lost profits for such period to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in connection with any acquisition or disposition permitted under this Agreement and lost profits covered by business interruption insurance, in each case, shall be excluded to extent that coverage has not been denied and only so long as such amounts are either actually reimbursed to the Borrower or any Restricted Subsidiary during such period or the Borrower has made a determination that there exists reasonable evidence that such amounts will be reimbursed to the Borrower or any Restricted Subsidiary within twelve (12) months after the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within twelve (12) months after the date of such determination), (ix) any net after-tax income or losses for such period attributable to early extinguishment of Indebtedness or obligations under any hedging agreement or other derivative instrument shall be excluded, (x) any realized or unrealized gains or losses
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
during such period (A) resulting from fair value accounting required by FASB Accounting Standards Codification 815, (B) relating to xxxx-to-market of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830 or (C) attributable to foreign currency translation, in each case, shall be excluded and (xi) solely for the purpose of determining the Available Amount, any net income (loss) of any Subsidiary (other than any Loan Guarantor) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Borrower or a Loan Guarantor by operation of the terms of such Subsidiary’s charter or any agreement, instrument, judgement, decree, order, statute or governmental rule or regulation applicable to such Subsidiary or its shareholder (other than (a) restrictions that have been waived or otherwise released and (b) restrictions pursuant to the Loan Documents) shall be excluded, except that Holdings’ equity in the net income of any such Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Permitted Investments actually distributed by such Subsidiary during such period to Holdings or another Subsidiary as a dividend or other distribution (subject, in the case of dividend to another Subsidiary, to the limitation contained above in this clause (xi)), minus
(b)an amount equal to the aggregate amount of cash and Permitted Investments actually distributed during such period by any non-Wholly Owned Restricted Subsidiary to any third party holding a non-controlling interest in such Restricted Subsidiary as a dividend or other distribution or return on investment.
For the avoidance of doubt, Consolidated Net Income for any period prior to the Closing Date shall be determined on a pro forma basis giving effect to the Transactions as if they had been consummated on the first day of such period.
87.“Consolidated Secured Indebtedness” means, as of any date of determination, the aggregate amount of Consolidated Total Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP that is secured by a Lien on any assets of Holdings or any Restricted Subsidiary.
88.“Consolidated Total Indebtedness” means, as of any date of determination, the aggregate amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of the acquisition method accounting in connection with the Transactions or any Permitted Acquisition (or other similar Investment not prohibited hereunder)) consisting only of Indebtedness for borrowed money, drawn but unreimbursed obligations under letters of credit or similar instruments, obligations in respect of Capitalized Leases, purchase money Indebtedness, debt obligations evidenced by bonds, promissory notes, debentures, indentures, credit agreements or similar instruments, Disqualified Equity Interests and any guarantees of the foregoing, minus the aggregate amount of cash and Permitted Investments (in each case, free and clear of all Liens, other than Liens permitted pursuant to Section 6.02), and excluding cash and Permitted
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Investments that are listed as “restricted” on the consolidated balance sheet of Holdings and its Restricted Subsidiaries as of such date unless “restricted” solely in favor of the facilities hereunder and in respect of secured Indebtedness subject to the terms of an Intercreditor Agreement.
89.“Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Holdings and its Restricted Subsidiaries at such date, excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Holdings and its Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and obligations under Letters of Credit to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes; provided that, for purposes of calculating Excess Cash Flow, increases or decreases in working capital (A) arising from acquisitions or dispositions by the Borrower and its Restricted Subsidiaries shall be measured from the date on which such acquisition or disposition occurred until the first anniversary of such acquisition or disposition with respect to the Person subject to such acquisition or disposition and (B) shall exclude (I) the impact of non-cash adjustments contemplated in the Excess Cash Flow calculation, (II) the impact of adjusting items in the definition of “Consolidated Net Income” and (III) any changes in current assets or current liabilities as a result of (x) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under hedging agreements or other derivative obligations, (y) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (z) the effects of acquisition method accounting.
90.“Contract Consideration” has the meaning assigned to such term in the definition of “Excess Cash Flow.”
91.“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
92.“Controlled Investment Affiliates” means, with respect to any Person, any fund or investment vehicle that is (i) organized for the purpose of making equity investments in one or more companies, (ii) controlled by, or is under common control with, such Person and (iii) engaged primarily in the business of making equity investments in the ordinary course of business, but not, in any case, including any of such Person’s portfolio operating companies. For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a person, whether by contract or otherwise.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
93.“Corresponding Tenor” with respect to any Available Tenor means, 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.
94.“Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including Other Term Loans and Other Revolving Loans), in each case, issued, incurred or otherwise obtained by the Borrower (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans or Revolving Loans (or unused Revolving Commitments) (“Refinanced Debt”); provided that such exchanging, extending, renewing, replacing or refinancing Indebtedness (a) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (plus any premium, accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal, replacement or refinancing plus any unfunded commitment thereunder), (b) does not mature earlier than or have a Weighted Average Life to Maturity shorter than, the Refinanced Debt; provided that, if such Indebtedness is unsecured or secured by the Collateral on a junior lien basis to the Secured Obligations, such Indebtedness (1) does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date and (2) does not have any mandatory prepayment, redemption or offer to purchase events more onerous to the Borrower and its Restricted Subsidiaries (as reasonably determined in good faith by the Borrower), taken as a whole, than those set forth in this Agreement (and shall otherwise be subject to the terms of this Agreement) (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default) (provided further that this clause (b) shall not apply to customary bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent refinancing which would satisfy the maturity requirements of this clause (b)), (c) in the case of any secured Indebtedness (i) is not secured by any assets not securing the Secured Obligations and (ii) if not comprising Other Term Loans or Other Revolving Loans hereunder, is subject to the relevant Intercreditor Agreement, (d) if such Indebtedness is guaranteed, it shall not be guaranteed by any Person other than a Loan Guarantor, (e) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued and unpaid interest, fees and premium (if any) in connection therewith shall be repaid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or otherwise obtained, (f) if the Refinanced Debt was (i) contractually subordinated to the Loan Document Obligations in right of payment, shall be contractually subordinated to the Loan Document Obligations on at least the same basis, (ii) contractually subordinated to the Loan Document Obligations in right of security, shall be contractually subordinated in right of security to the Loan Document Obligations on at least the same basis or be unsecured or (iii) unsecured, shall be unsecured, (g) no Default or Event of Default then exists or would result therefrom and (h) has terms and conditions (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing such Credit Agreement Refinancing Indebtedness than the terms and conditions of the Loan Documents (when taken as a
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
whole) are to the Lenders (as determined in good faith by the Borrower) (except for covenants or other provisions (x) reasonably acceptable to the Administrative Agent or added for the benefit of the Lenders pursuant to an amendment thereto (with no consent of the Lenders being required) or (y) applicable only to periods after the Latest Maturity Date at the time of such refinancing) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Credit Agreement Refinancing Indebtedness, no consent shall be required by the Administrative Agent if such financial maintenance covenant is either (i) also added for the benefit of any existing Class remaining outstanding after the issuance or incurrence of such Credit Agreement Refinancing Indebtedness or (ii) only applicable after the Latest Maturity Date) or consistent with current market terms for such type of Indebtedness (as determined by the Borrower in good faith).
95.“Cure Amount” has the meaning assigned to such term in Section 7.02(a).
96.“Cure Right” has the meaning assigned to such term in Section 7.02(a).
97.“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for 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.
98.“Date of Full Satisfaction” means, as of any date, that on or before such date: (a) the principal of and interest accrued to such date on each Loan shall have been paid in full in cash, (b) all fees, expenses and other amounts then due and payable which constitute Loan Document Obligations (other than contingent amounts for which no claim or demand has been made) shall have been paid in full in cash, (c) the Commitments shall have expired or been terminated, and (d) all Letters of Credit have expired or been terminated (unless such Letters of Credit have been cash collateralized or backstopped in amounts, by institutions and otherwise pursuant to arrangements, in each case reasonably satisfactory to the applicable Issuing Bank or deemed reissued under another agreement reasonably acceptable to the applicable Issuing Bank) and all LC Disbursements shall have been fully reimbursed.
99.“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
100.“Default” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
101.“Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swing Loans, within two (2) Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower 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, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank, the Swing Line Lender or any Lender that it does not intend to comply with its funding obligations or has made a public statement or provided any written notification to any Person to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s 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 request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of the Borrower (it being understood that the Administrative Agent shall comply with any such reasonable request)), the Swing Line Lender or any Issuing Bank, to confirm in a manner satisfactory to the Administrative Agent, the Swing Line Lender, such Issuing Bank and the Borrower that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), (d) otherwise failed to pay over to the Administrative Agent, any Issuing Bank or any Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, unless the subject of a good faith dispute or subsequently cured, or (e) has, or has a direct or indirect parent company that has, after the date hereof, other than in connection with an Undisclosed Administration, (i) become or is insolvent, (ii) become the subject of a proceeding under any Debtor Relief Law or Bail-In Action, (iii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iv) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; 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, in each case, 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 (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Banks, the Swing Line Lender and each Lender.
102.“Defaulting Lender Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
the obligations with respect to the Letters of Credit issued by such Issuing Bank other than 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 outstanding Swing Loans made by the Swing Line Lender other than Swing Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
103.“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 6.05(l) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).
104.“Discount Prepayment Accepting Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(B)(2).
105.“Discount Range” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(1).
106.“Discount Range Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(1).
107.“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.11(a)(ii)(C) substantially in the form of Exhibit L.
108.“Discount Range Prepayment Offer” means the irrevocable written offer by a Term Lender, substantially in the form of Exhibit M, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
109.“Discount Range Prepayment Response Date” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(1).
110.“Discount Range Proration” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(3).
111.“Discounted Prepayment Determination Date” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(3).
112.“Discounted Prepayment Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment or Borrower Solicitation of Discount Range Prepayment Offer, five (5) Business Days following the receipt by each relevant Term Lender of notice from the Auction Agent in accordance with Section 2.11(a)(ii)(B), Section 2.11(a)(ii)(C) or Section
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
2.11(a)(ii)(D), as applicable, unless a shorter period is agreed to between the Borrower and the Auction Agent.
113.“Discounted Term Loan Prepayment” has the meaning assigned to such term in Section 2.11(a)(ii)(A).
114.“Dispose” and “Disposition” each have the meaning assigned to such term in Section 6.05.
115.“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:
(a)matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
(b)is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests);
(c)is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof; or
(d)requires scheduled cash dividend payments;
in each case, on or prior to the date ninety-one (91) days after the Latest Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” or similar event shall not constitute a Disqualified Equity Interest if any such requirement becomes operative only after repayment in full of all the Loans and all other Loan Document Obligations that are accrued and payable, the cancellation or expiration of all Letters of Credit and the termination of the Commitments and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of Holdings (or any direct or indirect parent thereof) or any of its subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by Holdings (or any direct or indirect parent company thereof) or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
116.“Disqualified Lenders” means (i) those Persons identified by the Borrower to the Lead Arrangers and the Administrative Agent in writing prior to February 24, 2021 as being “Disqualified Lenders,” (ii) those Persons who are competitors of Holdings, the Borrower and its Subsidiaries identified by the Borrower to the Administrative Agent from time to time in writing (including by email), which designation shall become effective three (3) Business Days after delivery of each such written designation to the Administrative Agent, but which shall not apply retroactively to disqualify any persons that have previously acquired an assignment or participation interest in the Loans or Commitments, and (iii) in the case of each Person identified pursuant to clauses (i) and (ii) above, any of their Affiliates that are either (x) identified in writing by the Borrower from time to time, which designation shall become effective three (3) Business Days after delivery of each such written designation to the Administrative Agent, but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation in the Loans or Commitments or (y) clearly identifiable as Affiliates at such time solely on the basis of such Affiliate’s name (other than, in either case, Affiliates that are bona fide fixed income investors, debt funds, regulated bank entities or unregulated lending entities generally engaged in making, purchasing, holding or otherwise investing in commercial loans, debt securities or similar extensions of credit in the ordinary course of business); provided that the term “Disqualified Lender” shall exclude any Person that the Borrower shall have designated as no longer being a “Disqualified Lender” by written notice delivered to the Administrative Agent from time to time. Such list of Disqualified Lenders shall be available for inspection upon request by any Lender and the Administrative Agent may inform any prospective assignee if its name appears on the list of Disqualified Lenders.
117.“Division” means in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including as contemplated under Section 18 217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware law, or any analogous action taken pursuant to any other applicable law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide,” when capitalized, shall have a correlative meaning.
118.“dollars” or “$” refers to lawful money of the United States of America.
119.“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
120.“Early Opt-in Election” means, if the then-current Benchmark is the Adjusted LIBO Rate, the occurrence of:
(1)a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(2)the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Adjusted LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
121.“ECF Percentage” means, with respect to the prepayment required by Section 2.11(d) with respect to any fiscal year of Holdings, if the First Lien Net Leverage Ratio (prior to giving effect to the applicable prepayment pursuant to Section 2.11(d), but after giving effect to any voluntary prepayments made pursuant to Section 2.11(a) prior to the date of such prepayment) as of the end of such fiscal year is (a) greater than 2.50 to 1.00, 50% of Excess Cash Flow for such fiscal year, (b) greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00, 25% of Excess Cash Flow for such fiscal year and (c) less than or equal to 2.00 to 1.00, 0% of Excess Cash Flow for such fiscal year.
122.“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
123.“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
124.“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.
125.“Effective Yield” means, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below), any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination, or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (a) the remaining Weighted Average Life to Maturity of such Indebtedness and (b) the four years following the date of incurrence thereof) payable generally to lenders or other institutions providing such Indebtedness, but excluding any arrangement, syndication, commitment, structuring, ticking or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders or other holders of such Indebtedness and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor,” (i) to the extent that the Adjusted LIBO Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the Adjusted LIBO Rate or Base Rate (without giving effect to any floors in such definitions), as
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield, and such Adjusted LIBO Rate, as applicable, shall be calculated based on the Adjusted LIBO Rate applicable thereto on such date based on a deposit in dollars in with a maturity of three months.
126.“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
127.“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than Holdings, the Borrower or any of their respective Affiliates), other than, in each case, (i) a natural person, (ii) a Defaulting Lender or (iii) a Disqualified Lender.
128.“Engagement Letter” means that certain Engagement Letter by and among Truist Bank, Truist Securities, Inc., Fifth Third Bank, National Association and the Administrative Agent, dated February 24, 2021, as may be amended, restated, supplemented or otherwise modified from time to time.
129.“Environmental Laws” means all applicable treaties, rules, regulations, codes, ordinances, judgments, orders, decrees and other applicable Requirements of Law, and all applicable injunctions or binding agreements issued, promulgated or entered into by or with any Governmental Authority, in each instance relating to the protection of the environment, to preservation or reclamation of natural resources, to Release or threatened Release of any Hazardous Material or to the extent relating to exposure to Hazardous Materials, to health or safety matters.
130.“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties and indemnities) directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
131.“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities); provided that any instrument evidencing Indebtedness convertible or exchangeable for Equity Interests shall not be deemed to be Equity Interests unless and until such instrument is so converted or exchanged.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
132.“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
133.“ERISA Affiliate” means (a) any entity, whether or not incorporated, that is under common control with any Loan Party within the meaning of Section 4001(a)(14) of ERISA; (b) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which any Loan Party is a member; (c) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which any Loan Party is a member; or (d) with respect to any Loan Party, any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Loan Party, any corporation described in clause (b) above or any trade or business described in clause (c) above is a member.
134.“ERISA Event” means (a) any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each case whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by a Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA (other than premiums due and not delinquent under Section 4007 of ERISA); (f) the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(a)(2) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA; (g) the receipt by a Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, or to an intention to terminate or to appoint a trustee to administer any plan or plans in respect of which such Loan Party or ERISA Affiliate would be deemed to be an employer under Section 4069 of ERISA; (h) the engagement by any Loan Party or any ERISA Affiliate in a transaction that could reasonably be expected to be subject to Section 4069 of ERISA; (i) the incurrence by a Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan; (j) the receipt by a Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability, or the failure of a Loan Party or any ERISA Affiliate to pay when due, after the expiration of any applicable grace period, any installment payment with respect to any Withdrawal Liability; (k) the withdrawal of a Loan Party or any ERISA Affiliate from a 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; or (l) the failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
135.“Erroneous Payment” has the meaning assigned to such term in Section 8.12(a).
136.“Erroneous Payment Deficiency Assignment” has the meaning assigned to such term in Section 8.12(d).
137.“Erroneous Payment Impacted Class” has the meaning assigned to such term in Section 8.12(d).
138.“Erroneous Payment Return Deficiency” has the meaning assigned to such term in Section 8.12(d).
139.“Erroneous Payment Subrogation Rights” has the meaning assigned to such term in Section 8.12(d).
140.“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. “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
141.“Event of Default” has the meaning assigned to such term in Section 7.01.
142.“Excess Cash Flow” means, for any period, an amount equal to the excess of:
(a)the sum, without duplication, of:
(i)Consolidated Net Income for such period,
(ii)an amount equal to the amount of all Non-Cash Charges to the extent deducted in arriving at such Consolidated Net Income,
(iii)decreases in Consolidated Working Capital and long term accounts receivable for such period,
(iv)an amount equal to the aggregate net non-cash loss on dispositions by Holdings and its Restricted Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income,
(v)any cash gains or other cash items of income that were excluded from the calculation of Consolidated Net Income for such period,
(vi)the amount of tax expense deducted in determining Consolidated Net Income for such applicable period to the extent it exceeds the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) in such period,
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(vii)an amount equal to all cash received for such period or amount of any deductions from Excess Cash Flow made in a prior period pursuant to clause (b)(i) below, less:
(b)the sum, without duplication, of:
(i)an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net Income of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted under this Agreement to the extent such amounts are due but not received during such period) and cash charges that were excluded in the calculation of Consolidated Net Income to the extent financed with Internally Generated Cash,
(ii)without duplication of amounts deducted pursuant to clause (xii) below in prior fiscal years, the amount of capital expenditures made in cash or accrued during such period to the extent financed with Internally Generated Cash,
(iii)the aggregate amount of all principal payments (limited to the actual amount of cash paid) of Indebtedness (including (1) the principal component of payments in respect of Capitalized Leases, (2) the aggregate amount of scheduled amortization repayments on Indebtedness for borrowed money (including the Term Loans) and (3) the amount of any mandatory prepayment of Term Loans to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, made during such period), other than payments with respect to (A) all prepayments, buybacks and purchases of Term Loans and Revolving Loans and other Indebtedness, in each case that rank pari passu in right of security with the Initial Term Loans permitted to be incurred hereunder made during such period, (B) any Junior Financing to the extent not permitted to be made pursuant to Section 6.07(b), (C) all prepayments or repayments in respect of any revolving credit facility except to the extent there is an equivalent permanent reduction in the commitments thereunder and (D) any Indebtedness financed with the proceeds of other Indebtedness of Holdings or its Restricted Subsidiaries,
(iv)an amount equal to the aggregate net non-cash gain on Dispositions Holdings and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,
(v)increases in Consolidated Working Capital and long term accounts receivable for such period,
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(vi)cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness,
(vii)without duplication of amounts deducted pursuant to clause (xii) below in prior fiscal years, the amount of Investments (other than (i) Investments in Permitted Investments and (ii) intercompany Investments among or between Holdings and its Restricted Subsidiaries) and Permitted Acquisitions not prohibited by this Agreement to the extent that such Investments and Permitted Acquisitions were financed with Internally Generated Cash (other than in reliance on the Available Amount (other than the Starter Basket) and, to the extent derived from Internally Generated Cash, clauses (c), (d), (e) and (g) of the definition of “Available Amount”),
(viii)the amount of dividends and other Restricted Payments (including the amount of Tax Distributions made by the Borrower during such period, to the extent not deducted in arriving at Consolidated Net Income) paid in cash during such period, to the extent such dividends and Restricted Payments were financed with Internally Generated Cash (other than in reliance on the Available Amount (other than the Starter Basket) and, to the extent derived from Internally Generated Cash, clauses (c), (d), (e) and (g) of the definition of “Available Amount”),
(ix)the aggregate amount of payments and expenditures actually made by Holdings and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such payments and expenditures are not expensed during such period,
(x)cash payments by Holdings and its Restricted Subsidiaries during such period in respect of Non-Cash Charges that were added back to Excess Cash Flow pursuant to clause (a)(ii) above in any prior period,
(xi)the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness to the extent financed with Internally Generated Cash,
(xii)at the option of the Borrower, and without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts, commitments or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such period relating to Permitted Acquisitions, other similar Investments or capital expenditures to be consummated or made during a subsequent period; provided, that to the extent the aggregate amount of Internally Generated Cash actually utilized to finance such Permitted Acquisitions, other similar Investments or capital expenditures during
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
such subsequent period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period,
(xiii)the amount of cash rent payments made in such period to the extent they exceed the amount of rent payments deducted in determining Consolidated Net Income for such period,
(xiv)the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; and
(xv)any cash losses that were excluded from the calculation of Consolidated Net Income for such period.
Notwithstanding anything in the definition of any term used in the definition of “Excess Cash Flow” to the contrary, all components of Excess Cash Flow shall be computed for Holdings and its Restricted Subsidiaries on a consolidated basis.
143.“Excess Cash Flow Prepayment Amount” has the meaning assigned to such term in Section 2.11(d).
144.“Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.
145.“Excluded Assets” means (a) any fee-owned real property that is not Material Real Property and all leasehold (including ground lease) interests in real property (it being understood there will be no requirement to obtain landlord lien waivers, estoppels and collateral access letters), (b) motor vehicles, airplanes, and other assets subject to certificates of title or ownership to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement, (c) letter of credit rights (except to the extent constituting supporting obligations (as defined under the UCC) in which a security interest can be perfected with the filing of a UCC-1 financing statement), (d) commercial tort claims with a value (as reasonably determined by the Borrower) of less than $10,000,000 in the aggregate and commercial tort claims for which no complaint or counterclaim has been filed in a court of competent jurisdiction, (e) Equity Interests in any Person (other than any Wholly Owned Restricted Subsidiaries) to the extent (but only for so long as) the pledge thereof to the Administrative Agent is not permitted by the terms of such Person’s organizational or joint venture documents (to the extent such restriction exists on the Closing Date or on the date of acquisition of such Non-Wholly Owned Subsidiary or interest in such joint venture, as applicable and such restrictions were not contemplated in anticipation of the transactions hereunder) or would require the consent of one or more third parties (other than a Loan Party or a Subsidiary thereof) that has not been obtained (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other Requirements of Law), (f) voting Equity Interests (including, for purposes of this clause (f), any other interest or indebtedness treated as an equity interest for U.S. federal income tax purposes) in excess of 65%
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
of the “total combined voting power of all classes of voting stock” (within the meaning of Treasury Regulations section 1.956-2) of any Subsidiary that is a CFC or a FSHCO and that is owned directly by a Borrower or Loan Guarantor, (g) the Equity Interests of any Unrestricted Subsidiary, Immaterial Subsidiary (except to the extent perfected by filing a UCC-1 financing statement or such Immaterial Subsidiary is a Loan Guarantor), any Specified Subsidiary and any Subsidiary that is a captive insurance company, a not-for-profit subsidiary, or a special purpose securitization vehicle (or similar entity), (h) any lease, license or other agreement, government approval or franchise with any Person (other than a Loan Party or a Subsidiary thereof) if, to the extent and for so long as, the grant of a Lien thereon to secure the Secured Obligations constitutes a breach of or a default under, or creates a right of termination in favor of any party (other than any Loan Party or a Subsidiary thereof) to, such lease, license or other agreement, government approval or franchise (but only to the extent any of the foregoing is not rendered ineffective by, or is otherwise unenforceable under, the Uniform Commercial Code or any other Requirements of Law), (i) any license, lease, permit or other agreement or any property subject thereto or a purchase money security interest, Capital Lease Obligation or similar arrangement in each case, permitted hereunder, in each case, to the extent that, and so long as, the grant of a security interest therein (A) is prohibited by Requirements of Law other than to the extent such prohibition is rendered ineffective under the Uniform Commercial Code or other Requirements of Law or (B) would violate or invalidate such license, lease, permit or other agreement or purchase money security interest, Capital Lease Obligation or similar arrangement (other than any license, lease, permit or other agreement or purchase money security interest, Capital Lease Obligation or similar arrangement solely among the Loan Parties or a Subsidiary thereof), or would create a right of termination in favor of, or require the consent of, any other party thereto (other than a Loan Party or a Subsidiary thereof) (in each case, after giving effect to the relevant provisions of the Uniform Commercial Code or other Requirements of Law), (j) any intent-to-use trademark applications filed in the United States Patent and Trademark Office, pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. Section 1051, prior to the filing of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Xxxxxx Act or a filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in commerce” application pursuant to Section 1(c) of the Xxxxxx Act, (k) any asset if, to the extent and for so long as the grant of a Lien thereon to secure the Secured Obligations is prohibited by any Requirements of Law, rule or regulation (other than to the extent that any such prohibition would be rendered ineffective pursuant to the Uniform Commercial Code or any other applicable Requirements of Law) or which would require consent, approval, license or authorization from any Governmental Authority or regulatory authority, unless such consent, approval, license or authorization has been received in consultation with the Administrative Agent (in each case, other than to the extent such prohibition or limitation is rendered ineffective by, or is otherwise unenforceable under, the Uniform Commercial Code or other Requirements of Law), (l) margin stock (within the meaning of Regulation U of the Board of Governors, as in effect from time to time), (m) any assets acquired after the Closing Date to the extent the creation or perfection of pledges thereof, or security interests therein, would reasonably be expected to result in material adverse tax consequences to Holdings (or any parent entity thereof), the Borrower or its Restricted Subsidiaries, as reasonably determined by the Borrower in consultation with the Administrative Agent, (n) any assets with respect to which, in the reasonable judgment of the Administrative
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Agent and the Borrower (as agreed to in writing), the cost or other consequences (including adverse tax consequences) of pledging such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom and (o) (A) payroll and other employee wage and benefit accounts, (B) tax accounts, including, without limitation, sales tax accounts, (C) escrow accounts maintained for the benefit of unaffiliated third parties and (D) fiduciary or trust accounts maintained for the benefit of unaffiliated third parties and, in the case of clauses (A) through (D), the funds or other property held in or maintained in any such account (as long as the accounts described in clauses (A) through (D) are used solely for such purposes).
146.“Excluded Information” has the meaning assigned to such term in Section 2.11(a)(ii)(A).
147.“Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly Owned Subsidiary of Holdings, (b) any Specified Subsidiary, (c) any Subsidiary that is prohibited by applicable law, rule or regulation or contractual obligation existing on the Closing Date (so long as such contractual obligation was not contemplated in anticipation of the transactions hereunder) or, on the date such Subsidiary first becomes a Restricted Subsidiary (so long as such restriction was not created in contemplation thereof), from guaranteeing the Secured Obligations or which would require any governmental or regulatory consent, approval, license or authorization to do so, unless such consent, approval, license or authorization has been obtained, (d) any direct or indirect Foreign Subsidiary, (e) any direct or indirect Domestic Subsidiary that is (x) a direct or indirect Subsidiary of a Foreign Subsidiary or a FSHCO or (y) a FSHCO, (f) any Immaterial Subsidiary, (g) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower (as agreed in writing), the cost or other consequences (including any adverse tax consequences) of providing the Guarantee under the Guarantee Agreement shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (h) [reserved], (i) any other Subsidiary formed or acquired after the Closing Date with respect to which, in the reasonable judgment of the Borrower in consultation with the Administrative Agent, the provision of the Guarantee under the Guarantee Agreement would result in material adverse tax consequences to the Borrower or any of its Subsidiaries, (j) any not-for profit Subsidiaries or captive insurance companies, (k) any special purpose securitization vehicle (or similar entity), and (l) each Unrestricted Subsidiary; provided, that any Immaterial Subsidiary that is a signatory to the Collateral Agreement and the Guarantee Agreement shall be deemed not to be an Excluded Subsidiary for purposes of this Agreement and the other Loan Documents; provided further that the Borrower may at any time and in its sole discretion, upon written notice to the Administrative Agent (and, in the case of a Foreign Subsidiary, with the prior written consent of the Administrative Agent), deem that any Restricted Subsidiary shall not be an Excluded Subsidiary for purposes of this Agreement and the other Loan Documents and cause such Restricted Subsidiary to comply with the agreements set forth in Section 5.11.
148.“Excluded Swap Obligation” means, with respect to any Loan Guarantor at any time, any Secured Swap Obligation under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act, if, and to the extent that, all or a portion of the guarantee of such Loan Guarantor of, or the grant by such Loan Guarantor of a security interest to secure, such Secured Swap Obligation (or any guarantee
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Guarantor’s failure for any reason to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act (determined after giving effect to any “Keepwell”, support or other agreement for the benefit of such Loan Guarantor, at the time such guarantee or grant of a security interest becomes effective with respect to such related Secured Swap Obligation. If a Secured Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Secured Swap Obligation that is attributable to swaps that are or would be rendered illegal due to such guarantee or security interest.
149.“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or withheld or deducted from any payment to a Recipient to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) any withholding Tax imposed pursuant to FATCA, (c) any Tax that is attributable to such Recipient’s failure to comply with Section 2.17(e) and (d) in the case of a Lender, any U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender pursuant to a Requirement of Law in effect on the date on which such Lender (i) acquires such interest in the Loan or Commitment (except in the case of an assignment pursuant to a request by the Borrower under Section 2.19(b)) or (ii) changes its lending office, except in each case to the extent that, pursuant to Section 2.17(a), 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.
150.“fair market value” means, with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset or group of assets at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time taking into account the nature and characteristics of such assets, as reasonably determined by the Borrower in good faith (which determination shall be conclusive absent manifest error).
151.“FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable thereto and not materially more onerous to comply with), any current or future Treasury regulations thereunder or other official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such section of the Code.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
152.“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977.
153.“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or, if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent. For purposes of this Agreement the Federal Funds Rate shall not be less than zero percent (0%).
154.“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or corporate controller of the Borrower.
155.“Financial Performance Covenant” means the covenant set forth in Section 6.11.
156.“Financing Transactions” means (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, (b) the borrowing of Loans hereunder and the use of the proceeds thereof and (c) the issuance, amendment or extension of Letters of Credit hereunder and the use of proceeds thereof.
157.“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.
158.“First Lien Indebtedness” means any Indebtedness of Holdings and its Restricted Subsidiaries that is secured by a Lien on any asset of Holdings, the Borrower or any of the Restricted Subsidiaries (other than a Lien that is junior to the Lien of the Collateral Agent pursuant to an Intercreditor Agreement or other subordination agreement that is reasonably satisfactory to the Administrative Agent).
159.“First Lien Net Leverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma Basis, of (a) Consolidated First Lien Indebtedness as of such date to (b) Consolidated EBITDA for the most recently completed Test Period.
160.“Fixed Amounts” has the meaning assigned to such term in Section 1.07(b).
161.“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
162.“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 the Adjusted LIBO Rate.
163.“Foreign Lender” means a Lender that is not a United States person (as defined in Section 7701(a)(30) of the Code).
164.“Foreign Prepayment Event” has the meaning assigned to such term in Section 2.11(g).
165.“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia.
166.“FSHCO” means any direct or indirect Domestic Subsidiary of the Borrower that for U.S. federal income tax purposes has no material assets other than Equity Interests in one or more Foreign Subsidiaries and/or FSHCOs.
167.“Funded Debt” means all Indebtedness of Holdings, the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.
168.“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time.
169.“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, Governmental Authorities.
170.“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether federal, state, provincial, territorial, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
171.“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligations or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Indebtedness or other monetary obligations of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other monetary obligations; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into after the Closing Date in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). 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 in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.
172.“Guarantee Agreement” means the Master Guarantee Agreement among the Loan Parties and the Administrative Agent, substantially in the form of Exhibit B.
173.“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other wastes, chemicals, pollutants, contaminants or harmful or deleterious substances of any nature and in any form regulated pursuant to any Environmental Law.
174.“Holdings” has the meaning given to such term in the preliminary statements hereto.
175.“Identified Participating Lenders” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(3).
176.“Identified Qualifying Lenders” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(3).
177.“Immaterial Subsidiary” means any Subsidiary other than a “Material Subsidiary.” As of the Closing Date, the Immaterial Subsidiaries are listed on Schedule 1.01.
178.“Incremental Cap” means, as of any date of determination, the sum of (I) (a) the greater of (x) $68,000,000 and (ii) 100% of Consolidated EBITDA for the most recently completed Test Period calculated on a Pro Forma Basis plus (b) the aggregate amount of all voluntary repurchases (limited to the actual amount of cash paid), prepayments and payments utilizing the yank-a-bank provisions (to the extent such Indebtedness is accrued rather than assigned) of Term Loans, Incremental Equivalent Debt, Revolving Loans and Other Revolving Loans (in the case of any revolving facility, to the extent accompanied by a permanent reduction of commitments in respect thereof), in each case prior to such date and that are secured on a pari passu basis with the Initial Term Loans (other than, in each case, prepayments, repurchases and
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
commitment reductions with the proceeds of the incurrence of long-term Indebtedness (other than revolving Indebtedness) or the proceeds of any Cure Amounts), minus (c) the amount of all Incremental Facilities and Incremental Equivalent Debt incurred in lieu thereof outstanding at such time that was incurred in reliance on the foregoing clauses (a) and/or (b) and not redesignated plus (II) the maximum aggregate principal amount that can be incurred without causing (a) with respect to any Incremental Facility or Incremental Equivalent Debt secured on a pari passu basis with the Initial Term Loans, the First Lien Net Leverage Ratio, after giving effect to the incurrence of such Incremental Facility (which shall assume that the full amount of any Incremental Revolving Commitment Increase being established at such time is fully drawn and shall not net from Indebtedness for such calculation the proceeds from such Incremental Facility then funded) and the use of proceeds thereof, on a Pro Forma Basis, to exceed 3.00:1.00 for the most recent Test Period ended (subject to Section 1.06 to the extent applicable), plus (b) with respect to any Incremental Term Loan or Incremental Equivalent Debt secured on a junior basis to the Initial Term Loans, the Secured Net Leverage Ratio, after giving effect to the incurrence of such Incremental Term Loan (which shall not net from Indebtedness for such calculation the proceeds from such Incremental Facility then funded) and the use of proceeds thereof, on a Pro Forma Basis, to exceed 3.25:1.00 for the most recent Test Period ended (subject to Section 1.06 to the extent applicable), plus (c) with respect to any Incremental Term Loan or Incremental Equivalent Debt that is unsecured, the Total Net Leverage Ratio, after giving effect to the incurrence of such Incremental Term Loan (which shall not net from Indebtedness for such calculation the proceeds from such Incremental Facility then funded) and the use of proceeds thereof, on a Pro Forma Basis, to exceed 3.50:1.00 for the most recent Test Period ended (subject to Section 1.06 to the extent applicable). In calculating the Incremental Cap, the Borrower may elect to use the amounts permitted under clause (II) of the preceding sentence before using clause (I) of the preceding sentence, and if both amounts are available and the Borrower does not make an election, the Borrower will be deemed to have utilized amounts permitted under clause (II) (and any amounts concurrently incurred under clause (I) shall be permitted to exceed the applicable ratios under clause (II)).
179.“Incremental Equivalent Debt” has the meaning assigned to such term in Section 2.20(h).
180.“Incremental Facility Amendment” has the meaning assigned to such term in Section 2.20(d).
181.“Incremental Facility” has the meaning assigned to such term in Section 2.20(a).
182.“Incremental Revolving Commitment Increase” has the meaning assigned to such term in Section 2.20(a).
183.“Incremental Revolving Increase Lender” has the meaning assigned to such term in Section 2.20(d).
184.“Incremental Term Loan” has the meaning assigned to such term in Section 2.20(a).
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
185.“Incurrence Based Amounts” has the meaning assigned to such term in Section 1.07(b).
186.“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (x) trade accounts payable in the ordinary course of business, (y) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after being due and payable and (z) expenses accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (or similar instruments), (i) [reserved] and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances; provided that the term “Indebtedness” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty, indemnity or other unperformed obligations of the seller, (iii) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (iv) Indebtedness of any Person that is a direct or indirect parent of Holdings appearing on the balance sheet of Holdings or the Borrower, or solely by reason of push down accounting under GAAP, (v) any non-compete or consulting obligations incurred in connection with a Permitted Acquisition, (vi) any reimbursement obligations under pre-paid contracts entered into with clients in the ordinary course of business or (vii) for the avoidance of doubt, any Qualified Equity Interests issued by Holdings or the Borrower. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith. The amount of any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the initial stated principal amount thereof without giving effect to such discounts.
187.“Indemnified Taxes” means (a) all 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 preceding clause (a), Other Taxes.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
188.“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
189.“Information” has the meaning assigned to such term in Section 9.12(a).
190.“Initial Term Loans” means the Loans made pursuant to Section 2.01(a).
191.“Intellectual Property” has the meaning assigned to such term in the Collateral Agreement.
192.“Intellectual Property Security Agreement” means a short-form security agreement, suitable for filing with the United States Patent and Trademark Office or the United States Copyright Office (as applicable), with respect to any Intellectual Property that is registered, issued or applied for in the United States and that constitute Collateral.
193.“Intercompany Note” means a promissory note substantially in the form of Exhibit I.
194.“Intercreditor Agreement” means (a) to the extent executed in connection with the incurrence of secured Indebtedness pursuant to which the Liens securing such Indebtedness are intended to rank pari passu in right of security to the Liens securing the Obligations (but without regard to the control of remedies), an intercreditor agreement in form and substance reasonably acceptable to Administrative Agent, which agreement shall provide that the Liens securing such Indebtedness shall rank pari passu in right of or security to the Liens securing the Obligations (but without regard to the control of remedies) and (b) to the extent executed in connection with the incurrence of secured Indebtedness pursuant to which the Liens securing such Indebtedness are intended to rank junior in right of security to the Liens securing the Obligations, an intercreditor agreement in form and substance reasonably acceptable to Administrative Agent, which agreement shall provide that the Liens securing such Indebtedness shall rank junior in right of security to the Liens securing the Obligations.
195.“Interest Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing or Term Borrowing in accordance with Section 2.07, substantially in the form of Exhibit G or any other form reasonably approved by the Administrative Agent.
196.“Interest Payment Date” means (a) with respect to any Base Rate Loan, the last Business Day of each March, June, September and December, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) to the extent necessary to create a fungible Class of Term Loans, or Revolving Loans on any Business Day that any additional Term Loans or Revolving Loans are incurred.
197.“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date such Borrowing is disbursed or converted to or continued as a
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
Eurodollar Borrowing and ending on the date that is one, three or six months thereafter as selected by the Borrower in its Borrowing Request (or, if agreed to by each Lender participating therein, twelve months or such other period less than one month thereafter as the Borrower may elect); provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month at the end of such Interest Period and (c) no Interest Period shall extend beyond (i) in the case of Term Loans, the Term Maturity Date and (ii) in the case of Revolving Loans, the Revolving Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
198.“Internally Generated Cash” means, with respect to any period, net cash of the Borrower and the Restricted Subsidiaries provided by operating activities of the Borrower and the Restricted Subsidiaries during such period, excluding (a) Net Proceeds of any Disposition (other than Dispositions of inventory and other Dispositions in the ordinary course of business) or any event of the type set forth in clause (c) of the definition of “Prepayment Event”, (b) proceeds of any incurrence or issuance of Indebtedness and (c) proceeds of any issuance or sale of Equity Interests in the Borrower or any Restricted Subsidiary or any capital contributions to the Borrower or any Restricted Subsidiary; provided that proceeds of an incurrence of any revolving Indebtedness shall be deemed to be Internally Generated Cash.
199.“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person (including by Division or otherwise), whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness or other obligations 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 or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of determination, of (a) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, minus any cash payments actually received by such investor representing interest in respect of such Investment (to the extent any such payment to be deducted does not exceed the remaining principal amount of such Investment and without duplication of amounts increasing the Available Amount), but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be 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 reasonably determined in good faith by a Financial Officer, (c) any Investment in the form of a transfer of Equity Interests
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair market value (as determined in good faith by a Financial Officer) of such Equity Interests or other property as of the time of the transfer, minus any payments actually received by such investor representing a return of capital of, or dividends or other distributions in respect of, such Investment (to the extent such payments do not exceed, in the aggregate, the original amount of such Investment and without duplication of amounts increasing the Available Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (d) any Investment (other than any Investment referred to in clause (a), (b) or (c) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other securities of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus (i) the cost of all additions thereto and minus (ii) the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital, and of any cash payments actually received by such investor representing interest, dividends or other distributions in respect of such Investment (to the extent the amounts referred to in clause (ii) do not, in the aggregate, exceed the original cost of such Investment plus the costs of additions thereto and without duplication of amounts increasing the Available Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment. For purposes of Section 6.04, if an Investment involves the acquisition of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer.
200.“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.
201.“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be reasonably acceptable to the applicable Issuing Bank and in effect at the time of issuance of such Letter of Credit).
202.“Issuing Bank” means (a) Truist Bank and Fifth Third Bank, National Association or, in each case, its Affiliates or designees and (b) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in Section 2.05(k) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(l)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or designees of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate or designee with respect to Letters of Credit issued by such Affiliate or designee.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
203.“Junior Financing” means (a) any Indebtedness (other than any permitted intercompany Indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary) that is subordinated in right of payment to the Loan Document Obligations, (b) any Indebtedness that is unsecured (other than intercompany Indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary and Indebtedness that is not Indebtedness for borrowed money) or secured on a junior basis to the Liens securing the Secured Obligations (other than, in each case, any such Indebtedness that does not constitute Material Indebtedness) and (c) any Permitted Refinancing in respect of the foregoing.
204.“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Facility, any Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
205.“LC Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any LC Disbursement in accordance with its Applicable Percentage.
206.“LC Disbursement” means an honoring of a drawing by an Issuing Bank pursuant to a Letter of Credit.
207.“LC Exposure” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 or 3.14 of the ISP or for any Letter of Credit issued with the exclusion of Article 36 of the UCP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
208.“LC Issuer Sublimit” means, with respect to (a) Truist, an amount at any time not to exceed $2,500,000, (b) Fifth Third Bank, National Association, an amount at any time not to exceed $2,500,000 and (c) each other Issuing Bank, such amount as may be agreed by the Borrower and such Issuing Bank, in each case, or such greater amount to be agreed in writing between the Borrower and such Issuing Bank (in its sole discretion).
209.“LCA Election” has the meaning assigned to such term in Section 1.06.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
210.“LCA Test Date” has the meaning assigned to such term in Section 1.06.
211.“Lead Arrangers” means Truist Securities, Inc. and Fifth Third Bank, National Association (each, a “Lead Arranger”).
212.“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment, a Loan Modification Agreement or a Refinancing Amendment, in each case, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, “Lenders” includes the Swing Line Lender.
213.“Letter of Credit” means any letter of credit issued pursuant to this Agreement other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05.
214.“Letter of Credit Request” has the meaning assigned to such term in Section 2.05(b).
215.“Letter of Credit Sublimit” means an amount equal to $5,000,000. The Letter of Credit Sublimit is part of and not in addition to the aggregate Revolving Commitments.
216.“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
217.“Limited Condition Acquisition” means any Permitted Acquisition or other similar Investment permitted hereunder by the Borrower or one or more of its Restricted Subsidiaries, whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
218.“Loan Document Obligations” means (a) the due and punctual payment in cash by the Borrower of (i) the principal of, premium, if any, and interest at the applicable rate or rates provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents, including obligations to pay fees, expenses, reimbursement obligations, obligations pursuant to the Administrative Agent’s Erroneous Payment Subrogation Rights and indemnification obligations and obligations to provide cash collateral, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual payment in cash and performance of all other obligations of the Borrower under or pursuant to each of the Loan Documents and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents (including interest and other monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).
219.“Loan Documents” means this Agreement, any Refinancing Amendment, any Loan Modification Agreement, any Incremental Facility Amendment, the Guarantee Agreement, the Collateral Agreement, the other Security Documents, each Intercreditor Agreement (if applicable), and, except for purposes of Section 9.02, the Engagement Letter and any Note delivered pursuant to Section 2.09(e) and each other document that the Borrower and the Administrative Agent from time to time designate in writing as a “Loan Document”.
220.“Loan Guarantors” means Holdings and the Subsidiary Loan Parties.
221.“Loan Modification Agreement” means a loan modification agreement, in form reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.24.
222.“Loan Modification Offer” has the meaning assigned to such term in Section 2.24(a).
223.“Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.
224.“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
225.“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the aggregate Revolving Exposures and the unused aggregate Revolving Commitments at such time and (b) in the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans of such Class representing more than 50% of all Term Loans of such Class outstanding at such time; provided that (i) the total outstanding Term Loans held by the Borrower or any Affiliate thereof and (ii) whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, in each case, shall be excluded for purposes of making a determination of the Majority in Interest.
226.“Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
227.“Material Adverse Effect” means a circumstance, event or condition that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, financial condition or results of operations of Holdings, the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Borrower and the other Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the enforceability of the Loan Documents or the rights and remedies, taken as a whole, of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders under the Loan Documents.
228.“Material Indebtedness” means Indebtedness for borrowed money (other than the Loan Document Obligations), Capital Lease Obligations, purchase money Indebtedness, unreimbursed obligations for letter of credit drawings, obligations evidenced by bonds, debentures, notes or similar instruments, financial guarantees and similar instruments (other than ordinary course of business contingent reimbursement obligations) or obligations in respect of one or more Swap Agreements, of any one or more of Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount of $17,000,000 or more. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings, the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
229.“Material Non-Public Information” means material non-public information with respect to Holdings, the Borrower, its Subsidiaries or any parent thereof, or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws.
230.“Material Real Property” means real property (including fixtures) located in the United States and owned by any Loan Party with a book value, as reasonably determined by the Borrower in good faith, greater than or equal to $5,000,000.
231.“Material Subsidiary” means each Wholly Owned Restricted Subsidiary that, as of the last day of the fiscal quarter of the Borrower most recently ended, had net revenues or total assets for such quarter in excess of 5.0% of the consolidated net revenues or total assets, as applicable, of Holdings and its Restricted Subsidiaries for such quarter, in each case, calculated on a Pro Forma Basis; provided that in the event that the Immaterial Subsidiaries, taken together, had as of the last day of the fiscal quarter of Holdings most recently ended net revenues or total assets in excess of 7.5% of the consolidated net revenues or total assets, as applicable, of Holdings and its Restricted Subsidiaries for such quarter, the Borrower shall designate at its sole discretion one or more Immaterial Subsidiaries to be a Material Subsidiary as may be necessary such that the foregoing 7.5% limit shall not be exceeded, and any such Subsidiary shall thereafter be deemed to be an Material Subsidiary hereunder; provided further that the Borrower may re-designate Material Subsidiaries as Immaterial Subsidiaries so long as Borrower is in compliance with the foregoing and no Default or Event of Default exists or would exist as a result therefrom.
232.“Maximum Rate” has the meaning assigned to such term in Section 9.16.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
233.“Modified Amortization Percentage” means, at any time, with respect to any Incremental Term Loans that will constitute, and be added to, the Initial Term Loans, a percentage equal to the fraction, the numerator of which is the amount of the scheduled amortization payment required to be made on the next scheduled amortization repayment date pursuant to Section 2.10(a) and the denominator of which is the aggregate principal amount of Initial Term Loans that is outstanding at such time (without giving effect to the incurrence of Incremental Term Loans to be made at such time, but, for the avoidance of doubt, to include any Incremental Term Loans incurred prior to such time).
234.“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its rating agency business.
235.“Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time. Each Mortgage shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower.
236.“Mortgaged Property” means each parcel of Material Real Property with respect to which a Mortgage is granted pursuant to the Collateral and Guarantee Requirement, Section 5.11, Section 5.12 or Section 5.14 (if any).
237.“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
238.“Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event in cash or Permitted Investments, including (i) any cash or Permitted Investments received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds that are actually received, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments that are actually received, minus (b) the sum of (i) all fees and out-of-pocket expenses paid by Holdings, the Borrower and its Restricted Subsidiaries in connection with such event (including attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees), (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), (x) the amount of all payments that are permitted hereunder and are made by Holdings, the Borrower and its Restricted Subsidiaries as a result of such event to repay Indebtedness permitted to be incurred hereunder (other than the Loans and any other Indebtedness that is secured by Liens ranking pari passu or junior to the Liens securing the Loan Document Obligations) secured by such asset and otherwise subject to mandatory prepayment as a result of such event, (y) the pro rata portion of net cash proceeds thereof (calculated without
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
regard to this clause (y)) attributable to minority interests and not available for distribution to or for the account of Holdings, the Borrower or its Restricted Subsidiaries as a result thereof and (z) the amount of any liabilities directly associated with such asset and retained by Holdings, the Borrower or any Restricted Subsidiary and (iii) the amount of all taxes paid (or reasonably estimated to be payable), the amount of Tax Distributions, dividends and other restricted payments that Holdings, the Borrower and/or the Restricted Subsidiaries may make pursuant to Section 6.07(a)(vi)(A) or (B) as a result of such event, and the amount of any reserves established by Holdings, the Borrower and its Restricted Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are directly attributable to such event; provided that any reduction at any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of such reduction.
239.“Non-Accepting Lender” has the meaning assigned to such term in Section 2.24(c).
240.“Non-Cash Charges” means non-cash charges, expenses or losses for such period, including (A) the excess of GAAP rent expense over actual cash rent paid during such period due to the use of straight line rent for GAAP purposes, (B) impairment charges and, subject to clause (1) below, any other write-down or write-off of assets (including any impairment charge or asset write-off pursuant to Financial Accounting Standards Board Statement No. 142 or No. 144), (C) any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods), (D) losses recognized in respect of postretirement benefits as a result of the application of FASB ASC 715, (E) non-cash fair value adjustments of Investments, (F) all Non-Cash Compensation Expenses, (G) the non-cash impact of acquisition method accounting and (H) the non-cash impact of accounting changes or restatements, but excluding (1) any such non-cash charge, expense or loss to the extent that it represents an amortization of a prepaid cash expense that was paid in a prior period or write-down or write-off or reserves with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense) and (2) any non-cash charge, expense or loss to the extent it represents an accrual of or a reserve for cash expenditures in any future period; provided that, at the option of the Borrower, notwithstanding the exclusion in this clause (2) any such noncash charge, expense or loss may be added back in determining Consolidated EBITDA for the period in which it is recognized, so long as any cash expenditure made on account thereof in any future period is deducted pursuant to clause (D) of this definition.
241.“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.
242.“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).
243.“Non-Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person other than a Wholly Owned Subsidiary.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
244.“Not Otherwise Applied” means, with reference to any proceeds of any transaction or event or of Excess Cash Flow or the Available Amount that is proposed to be applied to a particular use or transaction, that such amount (a) was not required to prepay Loans pursuant to Section 2.11(d) and (b) has not previously been (and is not simultaneously being) applied to anything other than such particular use or transaction (including any application thereof as a Cure Right pursuant to Section 7.02).
245.“Note” means a promissory note of the Borrower, in substantially the form of Exhibit R, payable to a Lender or its registered assigns in any facility hereunder in a principal amount equal to the principal amount of the Revolving Commitment or Term Loans, as applicable, of such Lender.
246.“Notice of Swing Loan Refunding” has the meaning provided in Section 2.04(b).
247.“Offered Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(1).
248.“Offered Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(1).
249.“Organizational Documents” means, with respect to any Person, the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person.
250.“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
251.“Other Revolving Commitments” means one or more Classes of Revolving Commitments hereunder or extended Revolving Commitments that result from a Refinancing Amendment or a Loan Modification Agreement.
252.“Other Revolving Loans” means the Revolving Loans made pursuant to any Other Revolving Commitment or a Loan Modification Agreement.
253.“Other Taxes” means any and all present or future recording, stamp, court or documentary, intangible, filing or similar Taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
254.“Other Term Commitments” means one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment or a Loan Modification Agreement.
255.“Other Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment or a Loan Modification Agreement.
256.“Parent Specified Expenses” means any expenses in respect of salary, bonus and other benefits incurred or accrued by any direct or indirect parent of Holdings during any period that in the reasonable judgement of the Borrower are attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and in respect of which a Restricted Payment is made pursuant to Section 6.07(a)(vi)(F).
257. “Participant” has the meaning assigned to such term in Section 9.04(c)(i).
258.“Participant Register” has the meaning assigned to such term in Section 9.04(c)(ii).
259.“Participating Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(2).
260.“Payment Recipient” has the meaning assigned to it in Section 8.12(a).
261.“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
262.“Perfection Certificate” means a certificate substantially in the form of Exhibit C or such other form as agreed to by the Administrative Agent in its reasonable discretion.
263.“Permitted Acquisition” means the purchase or other acquisition, by merger, consolidation or otherwise, by the Borrower or any Restricted Subsidiary of at least a majority of the Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of, including research and development and related assets in respect of any product), any Person; provided that (a) in the case of any purchase or other acquisition of Equity Interests in a Person, (i) such Person, upon the consummation of such purchase or acquisition, will be a Restricted Subsidiary (including as a result of a merger or consolidation between any Restricted Subsidiary and such Person), or (ii) such Person is merged into or consolidated with a Restricted Subsidiary and such Restricted Subsidiary is the surviving entity of such merger or consolidation, (b) the business of such Person, or such assets, as the case may be, constitute a business permitted by Section 6.03(b), (c) with respect to each such purchase or other acquisition, all actions required to be taken with respect to such newly created or acquired Restricted Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of “Collateral and Guarantee Requirement” to the extent applicable are taken within the time periods set forth in this Agreement (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made that are
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
reasonably satisfactory to the Administrative Agent) (unless such newly created or acquired Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 5.13 or is otherwise an Excluded Subsidiary) and (d) (i) subject to Section 1.06, after giving effect to any such purchase or other acquisition (at the time of execution of a binding agreement in respect thereof), no Event of Default shall have occurred and be continuing and (ii) immediately before and immediately after the consummation of any such purchase or acquisition, no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing.
264.“Permitted Amendment” means an amendment to this Agreement and, if applicable the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.24, providing for an extension of a maturity date applicable to the Loans and/or Commitments of the Accepting Lenders and, in connection therewith, (a) a change in the Applicable Rate with respect to the Loans and/or Commitments of the Accepting Lenders and/or (b) all or any of the scheduled amortization payments of the Loans of the Accepting Lenders to be delayed to later dates than the scheduled amortization payments of principal of the existing Loans, so long as the Weighted Average Life to Maturity of the Loan of the Accepting Lenders shall be no shorter than the Weighted Average Life to Maturity of the Class of Loans subject to the Loan Modification Offer and/or (c) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders and/or (d) additional or modified covenants, events of default, guarantees or other provisions applicable only to periods after the Latest Maturity Date at the time of such Loan Modification Offer (it being understood that to the extent that any covenant, event of default, guarantee or other provision is added or modified for the benefit of any such Loans and/or Commitments, no consent shall be required by the Administrative Agent or any of the Lenders if such covenant, event of default, guarantee or other provision is (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Loans and/or Commitments or (ii) only applicable after the Latest Maturity Date at the time of such Loan Modification Offer).
265.“Permitted Encumbrances” means:
(a)Liens for Taxes, assessments or governmental charges that are not yet overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(b)Liens with respect to outstanding motor vehicle fines and Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens arising in the ordinary course of business that secure amounts not yet overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in each case so long as such Liens do not individually or in the aggregate have a Material Adverse Effect;
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(c)Liens incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other social security legislation or (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instrument for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary or otherwise supporting the payment of items set forth in the foregoing clause (i);
(d)Liens incurred or deposits made to secure the performance of bids, trade contracts (other than for the payment of Indebtedness for borrowed money), governmental contracts and leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, in each case incurred in the ordinary course of business or consistent with past practices;
(e)easements, rights-of-way, restrictions, encroachments, protrusions, zoning restrictions and other similar encumbrances and minor title defects and minor survey exceptions affecting real property that, in the aggregate, do not materially interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(f)Liens securing, or otherwise arising from, judgments not constituting an Event of Default under Section 7.01(j);
(g)Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for the account of Holdings, the Borrower or any of its Restricted Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit to the extent such obligations are permitted by Section 6.01 and (ii) specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(h)Liens arising from precautionary Uniform Commercial Code financing statements or similar filings made in respect of operating leases entered into by the Borrower or any of its Restricted Subsidiaries;
(i)rights of recapture of unused real property (other than any Mortgaged Property) in favor of the seller of such property set forth in customary purchase agreements and related arrangements with any Governmental Authority;
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
(j)Liens in favor of deposit banks or securities intermediaries securing customary fees, expenses or charges in connection with the establishment, operation or maintenance of deposit accounts or securities accounts;
(k)Liens in favor of obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of the Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(l)Liens arising from grants of non-exclusive licenses or sublicenses of Intellectual Property made in the ordinary course of business;
(m)rights of setoff, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments;
(n)Liens arising from the right of distress enjoyed by landlords or Liens otherwise granted to landlords, in either case, to secure the payment of arrears of rent or performance of other obligations in respect of leased properties, so long as such Liens are not exercised or except where the exercise of such Liens would not reasonably be expected to have a Material Adverse Effect;
(o)Liens or security given to public utilities or to any municipality or Governmental Authority when required by the utility, municipality or Governmental Authority in connection with the supply of services or utilities to the Borrower and any other Restricted Subsidiaries;
(p)servicing agreements, development agreements, site plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreements and other agreements pertaining to the use or development of any of the assets of the Person; provided the same do not result in (i) a substantial and prolonged interruption or disruption of the business activities of the Borrower and its Restricted Subsidiaries, taken as a whole, or (ii) a Material Adverse Effect;
(q)Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement; and
(r)Liens securing Priority Obligations;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money other than Liens referred to in clauses (d) and (k) above securing obligations under letters of credit or bank guarantees or similar instruments
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
related thereto and in clause (g) above, in each case to the extent any such Lien would constitute a Lien securing Indebtedness for borrowed money.
266.“Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes or senior secured loans; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Secured Obligations and is not secured by any other assets or properties, (ii) such Indebtedness complies with the applicable requirements set forth in the definition of “Credit Agreement Refinancing Indebtedness”, (iii) such Indebtedness, if guaranteed, is not guaranteed by any Person other than another Loan Party, (iv) such Indebtedness shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any Indebtedness that is secured on a pari passu basis with the liens securing the Secured Obligations may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of any Initial Term Loans, and (v) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the relevant Intercreditor Agreement(s); provided that if such Indebtedness is the initial Permitted First Priority Refinancing Debt incurred by the Borrower, then the Borrower, Holdings, the Subsidiary Loan Parties, the Administrative Agent and the Senior Representative for such Indebtedness shall have executed and delivered the relevant Intercreditor Agreement(s). Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
267.“Permitted Holders” means (a) each of Xxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxxx; (b) any heir of any such individual or any trust or other estate planning vehicle established for the benefit of any such individual referred to in clause (a) or any other individual having a relationship by blood (to the second degree of consanguinity), marriage, or adoption to any such individual and in respect of which that individual serves as trustee or in a similar capacity; and (c) the Sponsor.
268.“Permitted Investments” means any of the following, to the extent owned by the Borrower or any Restricted Subsidiary:
(a)United States dollars, or such other currencies held by it from time to time in the ordinary course of business;
(b)readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United States having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of such country or such member nation of the European Union is pledged in support thereof;
(c)time deposits with, or certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) has combined capital and surplus of at least $250,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of foreign banks (any such bank in
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
the foregoing clauses (i) or (ii) being an “Approved Bank”), in each case with average maturities of not more than 12 months from the date of acquisition thereof;
(d)commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, in each case with average maturities of not more than 12 months from the date of acquisition thereof;
(e)repurchase agreements entered into by any Person with an Approved Bank, a bank or trust company (including any of the Lenders) or recognized securities dealer covering securities described in clauses (b) and (c) above;
(f)marketable short-term money market and similar highly liquid funds substantially all of the assets of which are comprised of securities of the types described in clauses (b) through (e) above;
(g)securities with average maturities of 12 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States or by any political subdivision or taxing authority of any such state, member, commonwealth or territory having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);
(h)investments with average maturities of 12 months or less from the date of acquisition in mutual funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;
(i)instruments equivalent to those referred to in clauses (a) through (h) above denominated in euros or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction;
(j)investments, classified in accordance with GAAP as current assets of the Borrower or any Restricted Subsidiary, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions having capital of at least $250,000,000 or its equivalent, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (a) through (i) of this definition;
(k)with respect to any Restricted Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia: (i) obligations of the national government of the country in which such Restricted Subsidiary maintains its chief executive office and principal place of business;
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Restricted Subsidiary maintains its chief executive office and principal place of business; provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Xxxxx’x is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(l)investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (k) above.
269.“Permitted Ratio Debt” means any Indebtedness permitted to be incurred pursuant Sections 6.01(a)(vii), (a)(viii), (a)(ix), (a)(xiv), (a)(xv) or (a)(xvi).
270.“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(a)(v), Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Loan Document Obligations, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Loan Document Obligations on terms at least as favorable to the Lenders, taken as a whole, as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (d) [reserved], (e) the primary obligor in respect of, and/or the Persons (if any) that Guarantee, the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are the primary obligor in respect of, and/or Persons (if any) that guaranteed the Indebtedness being modified, refinanced, refunded, renewed or extended, (f) the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension is (x) unsecured if the Indebtedness being modified, refinanced, refunded, renewed or extended is unsecured or (y) not secured on a more favorable basis than the Indebtedness being modified, refinanced, refunded, renewed or extended if such Indebtedness being modified, refinanced, refunded, renewed or extended is
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
secured (as reasonably determined in good faith by the Borrower), (g) the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has terms and conditions (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing such Indebtedness than the Indebtedness being modified, refinanced, refunded, renewed or extended (when taken as a whole) are to the lenders or investors under the Indebtedness being modified, refinanced, refunded, renewed or extended (as determined in good faith by the Borrower) (except for covenants or other provisions (x) reasonably acceptable to the Administrative Agent or added for the benefit of the Lenders pursuant to an amendment hereto (with no consent of the Lenders being required) or (y) applicable only to periods after the Latest Maturity Date at the time of such refinancing) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness being modified, refinanced, refunded, renewed or extended, no consent shall be required by the Administrative Agent if such financial maintenance covenant is either (i) also added for the benefit of any existing Class remaining outstanding after the issuance or incurrence of such Indebtedness or (ii) only applicable after the Latest Maturity Date) or consistent with current market terms for such type of Indebtedness (as determined by the Borrower in good faith). For the avoidance of doubt, it is understood and agreed that (i) a Permitted Refinancing may constitute a portion of an issuance of Indebtedness in excess of the amount of such Permitted Refinancing; provided that such excess amount is otherwise permitted to be incurred under Section 6.01(a) and (ii) a Permitted Refinancing includes successive Permitted Refinancings of the same Indebtedness.
271.“Permitted Second Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority basis (but without regard to the control of remedies) with the Secured Obligations and is not secured by any other assets or properties, (ii) such Indebtedness complies with the applicable requirements set forth in the definition of “Credit Agreement Refinancing Indebtedness”, (iii) such Indebtedness, if guaranteed, is not guaranteed by any Person other than another Loan Party, (iv) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (v) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the relevant Intercreditor Agreement(s); provided that if such Indebtedness is the initial Permitted Second Priority Refinancing Debt incurred by the Borrower, then the Borrower, Holdings, the Subsidiary Loan Parties, the Administrative Agent and the Senior Representative for such Indebtedness shall have executed and delivered the relevant Intercreditor Agreement(s). Permitted Second Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
272.“Permitted Unsecured Refinancing Debt” means any unsecured Indebtedness incurred by the Borrower in the form of one or more series of senior unsecured notes or senior unsecured loans; provided that (i) such Indebtedness complies with the applicable requirements
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
set forth in the definition of “Credit Agreement Refinancing Indebtedness”, (ii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt, (iii) such Indebtedness, if guaranteed, is not guaranteed by any Person other than another Loan Party, and (iv) such Indebtedness is not secured by any Lien on any property or assets of Holdings, the Borrower or any Restricted Subsidiary. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
273.“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity, whether existing as of the date hereof or subsequently created or coming to exist.
274.“Plan” means any employee pension benefit plan as such term is defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a Loan Party or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.
275.“Platform” has the meaning assigned to such term in Section 5.01.
276.“Prepayment Event” means:
(a)any non-ordinary course sale, transfer or other disposition of any property or asset of the Borrower or any of its Restricted Subsidiaries permitted by Sections 6.05(f), (k), (l), (q) and (r), other than (i) dispositions constituting a sale-leaseback to the extent consummated substantially contemporaneously with the acquisition by the Borrower or such Restricted Subsidiary of the property subject to such sale-leaseback transaction and (ii) dispositions resulting in aggregate Net Proceeds not exceeding, (together with the aggregate amount of payments in respect of claims pursuant to clause (c) below) $5,000,000 for all such transactions during any fiscal year of the Borrower (and then, only the Net Proceeds in excess of $5,000,000 shall be subject to a Prepayment Event);
(b)the incurrence by the Borrower or any of its Restricted Subsidiaries of any Indebtedness, other than Indebtedness permitted under Section 6.01 (other than Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Other Term Loans, Other Revolving Loans and Other Revolving Commitments which shall constitute a Prepayment Event to the extent required by the definition of “Credit Agreement Refinancing Indebtedness”) or permitted by the Required Lenders pursuant to Section 9.02; or
(c)any payment in respect of any casualty or insurance claim with respect to any property or condemnation proceeding relating to any asset of the Borrower or any of its Restricted Subsidiaries exceeding, (together with the aggregate amount of resulting Net Proceeds pursuant to clause (a) above) $5,000,000 for all such claims during any
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
fiscal year of the Borrower (and then, only the Net Proceeds in excess of $5,000,000 shall be subject to a Prepayment Event).
277.“Prime Rate” has the meaning assigned to such term in the defined term “Base Rate”.
278.“Priority Obligation” means any obligation that is secured by a Lien on any Collateral in favor of a Governmental Authority, which Lien ranks prior to or pari passu with the Liens created thereon by the applicable Security Documents, including any such Lien securing amounts owing for wages, vacation pay, severance pay, employee deductions, sales tax, excise tax, other Taxes, workers compensation, governmental royalties and stumpage or pension fund obligations.
279.“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any basket, threshold, test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, the determination or calculation of such basket, threshold, test, financial ratio or covenant in accordance with Section 1.10.
280.“Pro Forma Financial Statements” has the meaning assigned to such term in Section 3.04(c).
281.“Proposed Change” has the meaning assigned to such term in Section 9.02(c).
282.“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
283.“Public Lender” has the meaning assigned to such term in Section 5.01.
284.“Qualified Equity Interests” means Equity Interests of Holdings or the Borrower other than Disqualified Equity Interests.
285.“Qualifying Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(D)(3).
286.“Recipient” means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank as applicable.
287.“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Adjusted LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not the Adjusted LIBO Rate, the time determined by the Administrative Agent in its reasonable discretion.
288.“Refinanced Debt” has the meaning assigned to such term in the definition of “Credit Agreement Refinancing Indebtedness.”
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
289.“Refinancing” has the meaning assigned to such term in the preliminary statements hereto.
290.“Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower and Holdings, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.21.
291.“Register” has the meaning assigned to such term in Section 9.04(b)(iv).
292.“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
293.“Reimbursement Date” has the meaning assigned to such term in Section 2.05(f).
294.“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the partners, directors, officers, employees, trustees, agents, controlling persons, advisors and other representatives of such Person and of each of such Person’s Affiliates and permitted successors and assigns of each of the foregoing.
295.“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) and including the environment within any building, or any occupied structure, facility or fixture.
296.“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
297.“Removal Effective Date” has the meaning assigned to such term in Section 8.06.
298.“Repricing Premium” means a fee in an amount equal to 1.00% of the aggregate principal amount of all Initial Term Loans prepaid, refinanced, substituted or replaced or, in the case of an amendment, the principal amount of Initial Term Loans subject to such amendment, in each case, in connection with a Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.
299.“Repricing Transaction” means, (a) all or any portion of the Initial Term Loans is voluntarily prepaid or refinanced with the proceeds of Indebtedness (including any mandatory prepayment pursuant to Section 2.11(d)), the primary purpose of which is to reduce the Effective Yield less than the Initial Term Loans (as reasonably determined by Administrative Agent in good faith in a manner consistent with generally accepted financial practices) or (b) any
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
amendment (including a Refinancing Amendment and any assignment by a Term Lender of its Initial Term Loans pursuant to Section 2.24 as a result of such Term Lender’s failure to consent to an amendment, amendment and restatement or other modification of any Loan Document that is approved by the Required Lenders (for the avoidance of doubt, the Borrower shall be required to pay the fee set forth in Section 2.12(d), to the extent such fee has been or would be paid, to such assignor Term Lender in connection with such amendment in respect of such Initial Term Loans assigned pursuant to Section 2.24(c) immediately prior to the Repricing Transaction)) to the Loan Documents the primary purpose of which is to reduce the Effective Yield applicable to all or a portion of the Initial Term Loans (as reasonably determined by Administrative Agent in good faith in a manner consistent with generally accepted financial practices); provided that, notwithstanding anything to the contrary, in no event shall any prepayment or repayment in connection with a financing or amendment for a Transformative Acquisition or a Change of Control constitute a Repricing Transaction.
300.“Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans, unused Term Commitments and unused Revolving Commitments representing more than 50% of the aggregate Revolving Exposures, outstanding Term Loans, unused Term Commitments and unused Revolving Commitments at such time; provided that, to the extent set forth in Section 9.02 or Section 9.04 whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Term Commitments and unused Revolving Commitments of, each Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
301.“Required Revolving Lenders” means, at any time, Revolving Lenders having Revolving Exposures and unused Commitments representing more than 50% of the aggregate Revolving Exposures and unused Commitments at such time; provided that to the extent set forth in Section 9.02 or Section 9.04 whenever there are one or more Defaulting Lenders, the total outstanding Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall be excluded for purposes of making a determination of Required Revolving Lenders; provided further that, at all times there are two or more Revolving Lenders that are (A) not Defaulting Lenders and (B) not Affiliates of each other (it being agreed that for purposes of this proviso, each Revolving Lender and its Affiliates and Approved Funds shall be deemed to be a single Revolving Lender), Required Lenders will require at least two such Revolving Lenders.
302.“Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
303.“Resignation Effective Date” has the meaning assigned to such term in Section 8.06.
1.“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
2.“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, or other similar officer, manager or a member of the Board of Directors of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof, and as to any document delivered on the Closing Date or thereafter pursuant to paragraph (a)(i) of the definition of “Collateral and Guarantee Requirement,” any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
3.“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrower or any Restricted Subsidiary.
4.“Restricted Subsidiary” means, unless otherwise specified herein, any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
5.“Retained Declined Proceeds” has the meaning assigned to such term in Section 2.11(e).
6.“Revolving Availability Period” means the period from and including the Closing Date to but excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving Commitments.
7.“Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swing Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) a Refinancing Amendment, (iii) an Incremental Revolving Commitment Increase or (iv) a Loan Modification Agreement. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption, Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. The initial aggregate amount of the Lenders’ Revolving Commitments is $50,000,000.
8.“Revolving Credit Facility” means the Revolving Commitments and the extensions of credit made thereunder.
12
| AMERICAS 107083989 | ||||||||
2036643.08-NYCSR03A - MSW
9.“Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans, its LC Exposure at such time and its Swing Exposure at such time.
10.“Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
11.“Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01.
12.“Revolving Maturity Date” means (i) May 25, 2026 (or if such day is not a Business Day, the immediately preceding Business Day) or (ii) with respect to any Revolving Lender that has extended its Revolving Commitment pursuant to a Permitted Amendment and with respect to any Issuing Bank that has consented to such extension, the extended maturity date set forth in any such Loan Modification Agreement.
13.“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.
14.“Sanctions” means any international economic sanctions administered or enforced by the United States government (including without limitation, OFAC), the United Nations Security Council, the European Union or Her Majesty’s Treasury.
15.“Screen Rate” means the rate specified in clause (i) of the definition of “Adjusted LIBO Rate”.
16.“