FIFTH AMENDMENT TO CREDIT AGREEMENT Dated as of November 30, 2018 among SP PLUS CORPORATION, as the Borrower, CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO, as the Guarantors, BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and...
Exhibit 10.1
Published CUSIP Number: 00000XXX0
FIFTH AMENDMENT
TO
Dated as of November 30, 2018
among
SP PLUS CORPORATION,
as the Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and L/C Issuer,
and
THE LENDERS PARTY HERETO
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
BMO XXXXXX BANK N.A.,
JPMORGAN CHASE BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
BOFA SECURITIES, INC.,
as Lead Arrangers and Bookrunners
1204724.01D-CHISR02A - MSW
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FIFTH AMENDMENT
This FIFTH AMENDMENT, dated as of April 21, 2022 (this “Amendment”), is entered into by and among SP Plus Corporation (the “Borrower”), the Guarantors, the Lenders party hereto and Bank of America, N.A., as Administrative Agent, Swingline Lender and L/C Issuer. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent, Swingline Lender and L/C Issuer, have entered into that certain Credit Agreement, dated as of November 30, 2018 (as amended, modified, extended, restated or supplemented from time to time on or prior to the date hereof, the “Credit Agreement”); and
WHEREAS, the Borrower has requested an increase to the Revolving Commitments as further described in Section 1, an additional advance under the Term Loan, as further described in Section 2, and certain other modifications to the Credit Agreement and the Administrative Agent and the Lenders have agreed to such modifications to the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Increase in the Revolving Commitments.
(a) The Revolving Commitments are increased by $75,000,000 (the “Revolver Increase”).
(b) The Revolving Commitment of each Revolving Lender, as increased or decreased, as applicable after giving effect to this Amendment and the Revolver Increase, is set forth opposite such Revolving Lender’s name on Annex C attached hereto.
(c)On the Effective Date, upon giving effect to this Amendment, each Lender shall, subject to the terms and conditions of the Amendment and the Amended Credit Agreement, effect such assignments, prepayments, borrowings and reallocations as are necessary to effectuate the modifications contemplated in this Amendment and the Amended Credit Agreement, in each case, such that, after giving effect thereto, each Lender will hold its Applicable Percentage of the Revolving Commitments and Revolving Loans, in accordance with Schedule 1.01(b) of the Credit Agreement, as amended by this Amendment.
2.Term Loan Advance.
(a)Subject to the terms and conditions provided herein, each Term Lender agrees to provide an additional advance of the Term Loan in an aggregate principal amount of $17,187,500 (such amount the “Additional Term Loan Advance”).
(b)The Outstanding Amount of the Term Loan of each Term Lender, as increased or decreased, as applicable after giving effect to this Amendment and the Additional Term Loan Advance, is set forth opposite such Term Lender’s name on Annex C attached hereto.
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(c)On the Effective Date, upon giving effect to this Amendment, each Lender shall, subject to the terms and conditions of the Amendment and the Amended Credit Agreement, effect such assignments, prepayments, borrowings and reallocations as are necessary to effectuate the modifications contemplated in this Amendment and the Amended Credit Agreement, in each case, such that, after giving effect thereto, each Lender will hold its Applicable Percentage of the Outstanding Amount of the Term Loan, in accordance with Schedule 1.01(b) of the Credit Agreement, as amended by this Amendment.
3.Amendments. Subject to the satisfaction of the conditions precedent set forth in Section 5:
(a)The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Annex A hereto (the Credit Agreement, as so amended, the “Amended Credit Agreement”).
(b)Schedule 1.01(a) to the Credit Agreement is hereby amended in its entirety to read in the form of Annex B hereof.
(c)Schedule 1.01(b) to the Credit Agreement is hereby amended in its entirety to read in the form of Annex C hereof.
(d)Exhibits E and I to the Credit Agreement are hereby amended in their entirety to read in the forms of Annex D attached hereto.
(e)Except as set forth in Sections 5(b) and (c) hereof, no appendices, schedules or exhibits to the Credit Agreement (as amended or otherwise modified in writing prior to the Effective Date) are modified or otherwise affected hereby.
4.Release of Standard Auto Park, Inc. as Guarantor. Effective as of the Effective Date, (i) Standard Auto Park, Inc., an Illinois corporation (“SAP”) (A) will cease to be a Guarantor under the Amended Credit Agreement and (B) will no longer have any obligations under the Credit Agreement, the Amended Credit Agreement or any other Loan Document and will cease to be a party thereto, (ii) all references in the Loan Documents to a “Guarantor” or “Obligor” thereafter shall no longer include SAP, (iii) the Administrative Agent, on behalf of itself, the Lenders and the other Secured Parties, hereby releases SAP from the Guaranty and from all of its liabilities, duties, covenants and obligations under the Credit Agreement, the Amended Credit Agreement and the other Loan Documents, and from all claims, demands, actions, causes of action, debts, costs and liabilities whatsoever, whether at law or in equity, arising under or relating to any of the Credit Agreement, the Amended Credit Agreement and the other Loan Documents, automatically and without the need for any further action and (iv) the Administrative Agent, on behalf of itself, the Lenders and the other Secured Parties, hereby releases its lien on the assets of SAP and agrees to promptly file a UCC-3 termination statement evidencing such release with the office of the Illinois Secretary of State on the Effective Date.
5. Conditions Precedent. This Amendment shall become effective as of the date hereof after each of the following conditions is satisfied (such date the “Effective Date”):
(a)Receipt by the Administrative Agent of:
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(i)counterparts of this Amendment duly executed by the Borrower, the Guarantors, each Lender and Bank of America, N.A., as Administrative Agent;
(ii)such certificates and resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment;
(iii)such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is in good standing and qualified to engage in business in its state of incorporation, organization or formation;
(iv)an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Loan Parties, dated the Effective Date and addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent;
(v) evidence that all boards of directors, governmental, shareholder and material third party consents and approvals necessary in connection with the entering into of this Agreement have been obtained, other than any filings or recordings to be made by the Administrative Agent with respect to Liens;
(vi)a certificate signed by a Responsible Officer of the Borrower as to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the Amendment on the Effective Date on a Pro Forma Basis;
(vii) (A) bring-down searches of UCC filings in the jurisdiction of organization, incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the active financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) bring-down tax lien and judgment searches;
(viii)bring-down searches of ownership of issued, registered or applied-for patents, trademarks and copyrights in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in such Intellectual Property; and
(c)The Administrative Agent and the Lenders shall have received payment of all fees and expenses, if any, owing pursuant to (a) any fee letter executed in connection herewith and (b) to the extent invoiced at least one (1) Business Day prior to the Effective Date, the Credit Agreement (including without limitation the reasonable and documented legal fees and expenses of the Administrative Agent owing in connection with this Amendment).
(d)Following the reasonable request of any Lender made at least five (5) Business Days prior to the Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in
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connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act.
(e)If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, following the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, a Beneficial Ownership Certification in relation to the Borrower.
6.Miscellaneous.
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(a)The Credit Agreement and the other Loan Documents and the obligations of the Loan Parties thereunder are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Amendment shall constitute a Loan Document. |
(b)Each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the Loan Documents.
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(c)The Loan Parties hereby represent and warrant on the date hereof as follows: |
(i)the Loan Parties have taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment;
(ii)this Amendment has been duly executed and delivered by each Loan Party and constitutes each such Loan Party’s legal, valid and binding obligations, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium or other laws affecting the enforceability of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(iii)no approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by the Borrower or any Guarantor of this Amendment, other than, in each case, (A) those approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, and (B) those approvals, consents, exemptions, authorizations, actions, notices and filings the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
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(d)The Loan Parties represent and warrant to the Lenders on the date hereof that (i) the representations and warranties of each Loan Party set forth in the Credit Agreement (as amended by this Amendment) and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by Material Adverse Effect or other materiality, in which case, it is true and correct in all respects) with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case, such representations and warranties was true and correct in all material respects (except to the extent any such representation and warranty is qualified by Material Adverse Effect or other materiality, in which case, it was true and correct in all respects) as of such earlier date) and (ii) after giving effect |
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to this Amendment, no Default or Event of Default exists and is continuing, or would immediately result from this Amendment. |
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(e)Each Loan Party (a) affirms that each of the Liens granted in or pursuant to the Loan Documents are valid and subsisting and (b) agrees that this Amendment does not in any manner impair or otherwise adversely effect any of the Liens granted in or pursuant to the Loan Documents. |
(f)This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by fax or e-mail shall be effective as an original and shall constitute a representation that an executed original shall be delivered.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
7. Exiting Lender.
(a)Each Person executing this Agreement under the heading “Exiting Lender” on the signature pages hereto, in its capacity as a lender under the Credit Agreement (each, an “Exiting Lender”), is signing this Agreement for the purposes of amending the Credit Agreement as contemplated by Section 3 and assigning its loans and commitments under the Credit Agreement on the Effective Date to one or more Lenders under the Amended Credit Agreement as set forth in Sections 1 and 2. Upon giving effect to this Amendment, no Exiting Lender shall have any rights, obligations or duties as a Lender under the Amended Credit Agreement or any other Loan Document, except for any right, obligation or duty which by the express terms of the Credit Agreement or any other Loan Document would survive termination of the Credit Agreement or such other Loan Document and the Borrower shall have no obligations or liabilities to any Exiting Lender under the Amended Credit Agreement or any other Loan Document, except for obligations or liabilities which by the express terms of the Credit Agreement or any other Loan Document would survive termination of the Credit Agreement or such other Loan Document.
(b)The Borrower shall pay to each Exiting Lender all outstanding obligations with respect to the Loans and Commitments owing to such Exiting Lender in connection with the Credit Agreement and the other Loan Documents substantially contemporaneously with the Effective Date. At the expense of the Borrower, each Exiting Lender shall take such further action and execute such other documents as may be necessary to effectuate the purposes of this Section 7; provided that the Borrower shall not be responsible for paying any fee incurred under Section 11.06(b)(iv) of the Credit Agreement on behalf of any Existing Lender.
[remainder of page intentionally left blank]
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Each of the parties hereto has caused a counterpart of this Fifth Amendment to be duly executed and delivered as of the date first above written.
BORROWER:SP PLUS CORPORATION,
a Delaware corporation
By:/s/ XXXXXXXXXX X. XXX
Name:Xxxxxxxxxx X. Xxx
Title:Chief Financial Officer and Treasurer
GUARANTORS:Atlanta Provisions, LLC,
a Florida limited liability company
Xxxxxx Xxxxxxxxx Transfer, LLC,
a Florida limited liability company
Baggage Airline Guest Services, Inc.,
a Florida corporation
Bags for Cruises, LLC,
a Florida limited liability company
Bags of Florida, LLC,
a Florida limited liability company
Bags of Georgia, LLC,
a Florida limited liability company
Bags of Nevada, LLC,
a Nevada limited liability company
Bags Parking Services LLC,
a Florida limited liability company
Baltimore Distribution, LLC,
a Florida limited liability company
CCM Investments Group, LLC,
a Delaware limited liability company
Central Parking Corporation,
a Tennessee corporation
Central Parking System of Connecticut, Inc.,
a Tennessee corporation
Central Parking System of Georgia, Inc.,
a Tennessee corporation
Central Parking System of Maryland, Inc.,
a Tennessee corporation
By:/s/ XXXXXXXXXX X. XXX
Name:Xxxxxxxxxx X. Xxx
Title:Vice President, Chief Financial Officer and Treasurer
[Signature Pages Continue]
SP PLUS CORPORATION
FIFTH AMENDMENT
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Central Parking System of New York, Inc.,
a Tennessee corporation
Central Parking System of Puerto Rico, Inc.,
a Tennessee corporation
Central Parking System of Washington, Inc.,
a Tennessee corporation
Central Parking System Realty of New York, Inc., a Tennessee corporation
Central Parking System, Inc.,
a Tennessee corporation
Certified Auto Retrieval Service, Inc.,
a Florida corporation
City Nights Valet, Inc.,
a Florida corporation
CITY SIDE SERVICES, LLC,
a Delaware limited liability company
Colorado Springs Services, LLC,
a Florida limited liability company
CPC PropCo, LLC,
a Delaware limited liability company
Dallas Love Supplies, LLC,
a Florida limited liability company
DC Provisions, LLC,
a Florida limited liability company
Denver Services, LLC,
a Florida limited liability company
Dulles Services, LLC,
a Florida limited liability company
Xxxxxx Provisions, LLC,
a Florida limited liability company
Home Serv Delivery, LLC,
a Florida limited liability company
HOSPITALITY CCGS HOLDINGS, LLC,
a Delaware limited liability company
By:/s/ XXXXXXXXXX X. XXX
Name:Xxxxxxxxxx X. Xxx
Title:Vice President, Chief Financial Officer and Treasurer
[Signature Pages Continue]
SP PLUS CORPORATION
FIFTH AMENDMENT
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KCPC Holdings, Inc.,
a Delaware corporation
Xxxxxx System, Inc.,
a Delaware corporation
Luggage Logistics & Procurement, LLC, a Florida limited liability company
LUGGAGE SERVICES AND LOGISTICS, LLC,
a Delaware limited liability company
Maple Leaf Logistics, LLC,
a Florida limited liability company
Xxxxxxx Leasing, LLC,
a Florida limited liability company
Xxxxxxx Trucking LLC,
a Delaware limited liability company
Miami Dade Conveyance, LLC,
a Florida limited liability company
Minneapolis Transfer, LLC,
a Florida limited liability company
Xxxxxxx.xxx, LLC,
a Pennsylvania limited liability company
Newark Distributions, LLC,
a Florida limited liability company
Orlando DTTS, LLC,
a Florida limited liability company
Pacific Bags, LLC,
a Florida limited liability company
Portland Provisions, LLC,
a Florida limited liability company
REMOTE CHECK-IN, LLC,
a Delaware limited liability company
RSF SECURE, LLC,
a Delaware limited liability company
By:/s/ XXXXXXXXXX X. XXX
Name:Xxxxxxxxxx X. Xxx
Title:Vice President, Chief Financial Officer and Treasurer
SP PLUS CORPORATION
FIFTH AMENDMENT
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RSF STAFF, LLC,
a Delaware limited liability company
Rynn’s Luggage of Texas, Inc.,
a Texas corporation
Rynn's Luggage Corporation,
a Pennsylvania corporation
Salt Lake City Transfer, LLC,
a Florida limited liability company
Sort, LLC,
a Florida limited liability company
Standard Auto Park, Inc.,
an Illinois corporation
Standard Parking Corporation IL,
a Delaware corporation
Tampa Conveyance, LLC,
a Florida limited liability company
Tros DTTS, LLC,
a Florida limited liability company
TRUK, LLC,
a Delaware limited liability company,
Tucson Provisions, LLC
a Florida limited liability company,
Tugs, LLC
a Florida limited liability company,
USA Parking System, Inc.,
a Tennessee corporation
VOYAGER MERCHANDISING, LLC,
a Delaware limited liability company
ZWB Holdings, Inc.,
a Florida corporation
By:/s/ XXXXXXXXXX X. XXX
Name:Xxxxxxxxxx X. Xxx
Title:Vice President, Chief Financial Officer and Treasurer
APCOA LaSalle Parking Company, LLC,
a Louisiana limited liability company
By:SP Plus Corporation
Its:Manager and Member
By:___ /s/ XXXXXXXXXX X. ROY___________
Name:Xxxxxxxxxx X. Xxx
Title:Chief Financial Officer and Treasurer
SP PLUS CORPORATION
FIFTH AMENDMENT
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ADMINISTRATIVE AGENT:bank of america, n.a.,
as Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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LENDERS:BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swingline Lender
By: /s/ Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxxxx
Name:Xxx Xxxxxxxx
Title:Senior Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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BMO XXXXXX BANK N.A.
By: /s/ Xxxxxxx Xxxxxx
Name:Xxxxxxx Xxxxxx
Title:Director
SP PLUS CORPORATION
FIFTH AMENDMENT
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JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name:Xxxxxxxxxxx X. Xxxxx
Title:Executive Director
SP PLUS CORPORATION
FIFTH AMENDMENT
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title:Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Senior Vice President
[Signature Pages Continue]
SP PLUS CORPORATION
FIFTH AMENDMENT
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ASSOCIATED BANK, N.A.
By: /s/ Xxxxx Xxxxxxxx
Name:Xxxxx Xxxxxxxx
Title:Senior Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxxx
Name:Xxxxx Xxxxxxxxxx
Title:Assistant Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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FIRST HAWAIIAN BANK
By: /s/ Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Senior Vice President
SP PLUS CORPORATION
FIFTH AMENDMENT
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EXITING LENDER:CIBC BANK USA
By: /s/ Xxxxxx Xxxxxxx
Name:Xxxxxx Xxxxxxx
Title:Officer
SP PLUS CORPORATION
FIFTH AMENDMENT
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ANNEX A
Amended Credit Agreement
See attached.
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ANNEX B
Schedule 1.01(a) – Certain Addresses for Notices
Address for All Loan Parties:
SP Plus Corporation
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxx X. Xxx, Chief Financial Officer and Treasurer
Telephone: 000-000-0000
Electronic Mail:xxxx@xxxxxx.xxx
Address for Administrative Agent:
Administrative Agent’s Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A., as Administrative Agent
Mail Code: XX0-000-00-00
XXXX XX XXXXXXX XXXXXX XXXX
0000 XXXXXXXXX XXXX XXXX 000
XXXXXXXXXXXX, XX, 00000-0000 Attention: Xxxxx X Xxxxxx
Tel: 000-000-0000
Email: xxxxx.x.xxxxxx@xxxx.xxx
Remittance Instructions- US Dollars:
Bank of America, N.A.
New York, NY
ABA# 000000000
Account No.: 1366072250600
Account Name: Wire Clearing Acct for Syn Loans-LIQ
Ref: SP Plus Corporation
Other Notices as Administrative Agent:
Bank of America, N.A., as Administrative Agent
000 X. Xxxxx Xx., 0xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel: 000-000-0000
Facsimile: 000-000-0000
Email: xxxx.x.xxxxxxx@xxxx.xxx
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Issuing Lenders:
Bank of America, N.A.
Trade Operations
0 Xxxxx Xxx
Mail Code: PA6-580-02-30
Scranton, Pa. 18507
Attention: Trade Operations
Tel: 000-000-0000
Facsimile: 800-755-8740
Email: xxxxxxxxxxxxxxxxxxxxxxxx@xxxx.xxx
Remittance Instructions:
Bank of America, N.A.
New York, NY
ABA #: 000-000-000
Account #: 04535-883980
Attn: Scranton Standby
Ref: SP Plus Corporation
Xxxxx Fargo Bank, National Association
Xxx Xxxxxxxx
Senior Vice President
000 X. Xxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000 0000
Fax: (312) 795 – 9388
xxx.xxxxxxxx@xxxxxxxxxx.xxx
Swing Line Lender:
Bank of America, N.A., as Administrative Agent
Mail Code: XX0-000-00-00
XXXX XX XXXXXXX XXXXXX XXXX
0000 XXXXXXXXX XXXX XXXX 000
XXXXXXXXXXXX, XX, 00000-0000 Attention: Xxxxx X Xxxxxx
Tel: 000-000-0000
Email: xxxxx.x.xxxxxx@xxxx.xxx
Remittance Instructions- US Dollars:
Bank of America, N.A.
New York, NY
ABA# 000000000
Account No.: 1366072250600
Account Name: Wire Clearing Acct for Syn Loans-LIQ
Ref: SP Plus Corporation
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ANNEX C
Schedule 1.01(b) – Commitments and Applicable Percentages
|
Lender |
Revolving Commitment |
Applicable Percentage of Revolving Facility |
Outstanding Term Loan |
Applicable Percentage of Term Facility |
|
Bank of America, N.A. |
$110,000,000.01 |
27.500000000% |
$54,999,999.99 |
27.500000000% |
|
Xxxxx Fargo Bank, National Association |
$90,000,000.00 |
22.500000000% |
$45,000,000.00 |
22.500000000% |
|
BMO Xxxxxx Bank N.A. |
$33,333,333.33 |
8.333333332% |
$16,666,666.67 |
8.333333334% |
|
JPMorgan Chase Bank, N.A. |
$30,000,000.00 |
7.500000000% |
$15,000,000.00 |
7.500000000% |
|
KeyBank National Association |
$33,333,333.33 |
8.333333332% |
$16,666,666.67 |
8.333333334% |
|
U.S. Bank National Association |
$33,333,333.33 |
8.333333332% |
$16,666,666.67 |
8.333333334% |
|
Associated Bank, N.A. |
$25,000,000.00 |
6.250000000% |
$12,500,000.00 |
6.250000000% |
|
PNC Bank, National Association |
$25,000,000.00 |
6.250000000% |
$12,500,000.00 |
6.250000000% |
|
First Hawaiian Bank |
$20,000,000.00 |
5.000000000% |
$10,000,000.00 |
5.000000000% |
|
TOTAL |
$400,000,000.00 |
100.00000000% |
$200,000,000.00 |
100.00000000% |
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ANNEX D
Amended Exhibits to Credit Agreement
See attached.
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EXHIBIT E
FORM OF LOAN NOTICE
TO:Bank of America, N.A., as [Administrative Agent][Swingline Lender]
|
RE: |
Credit Agreement, dated as of November 30, 2018, by and among SP Plus Corporation, a Delaware corporation (the “Borrower”), the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swingline Lender (as amended, modified, extended, restated or supplemented from time to time on or prior to the date hereof, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement) |
DATE:[Date]
The undersigned hereby requests (select one):
☐ A Borrowing of [Revolving Loans][Swingline Loans][Term Loan]
☐ A conversion or continuation of [Revolving Loans][Term Loan]
1.On _______________, 20___ (which is a Business Day).
2.In the amount of $__________.
3.Comprised of ______________ (Type of Loan requested).
4.[For Term SOFR Loans: with an Interest Period of __________ months.]1
Solely with respect to any Borrowing (and not with respect to any conversion of outstanding Loans from one Type to another or the continuation of Term SOFR Loans), the Borrower hereby represents and warrants on the date hereof that (a) solely in the case of any Revolving Borrowing, after giving effect thereto, (i) the Total Revolving Outstandings shall not exceed the Revolving Facility, and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment and (b) all of the conditions contained in Section 4.02 of the Credit Agreement will be satisfied on and as of the date of the Borrowing requested hereby, at the time of and immediately after giving effect thereto.
Delivery of an executed counterpart of a signature page of this notice by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this notice.
[Signature Page Follows]
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1 |
Bracketed language to be included only with Term SOFR Loans. |
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SP PLUS CORPORATION,
a Delaware corporation
By:
Name:
Title:
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EXHIBIT I
FORM OF NOTICE OF LOAN PREPAYMENT
TO:Bank of America, N.A., as [Administrative Agent][Swingline Lender]
|
RE: |
Credit Agreement, dated as of November 30, 2018, by and among SP Plus Corporation, a Delaware corporation (the “Borrower”), the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swingline Lender (as amended, modified, extended, restated or supplemented from time to time, the “Credit Agreement”; terms used but not otherwise defined have the meanings provided in the Credit Agreement) |
DATE:[Date]
The Borrower hereby notifies the Administrative Agent that on _____________ pursuant to the terms of Section 2.05 of the Credit Agreement, the Borrower intends to prepay the following Loans as more specifically set forth below:
☐ Optional prepayment of [Revolving][Term] Loans in the following amount(s):
☐ Term SOFR Loans: $2
Applicable Interest Period:
☐ Base Rate Loans: $3
☐ Optional prepayment of Swingline Loans in the following amount:
$4
Delivery of an executed counterpart of a signature page of this notice by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this notice.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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2 |
Any prepayment of Term SOFR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or if less, the entire principal amount thereof outstanding) and the notice evidencing such prepayment of such Term SOFR Loan needs to be received by the Administrative Agent not later than 10:00 a.m. (Central time) three Business Days prior to such intended date of prepayment. |
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3 |
Any prepayment of Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof (or if less, the entire principal amount thereof outstanding) and the notice evidencing such prepayment of Base Rate Loans needs to be received by the Administrative Agent not later than 10:00 a.m. (Central time) on the intended date of prepayment. |
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4 |
Any prepayment of Swingline Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or if less, the entire principal amount thereof outstanding) and the notice evidencing such prepayment of Swingline Loans needs to be received by the Administrative Agent not later than 12:00 p.m. (Central time) on the intended date of prepayment. |
CHAR1\1886785v7
SP PLUS CORPORATION,
a Delaware corporation
By:
Name:
Title:
2
1204724.01-CHISR02A1204724.01D-CHISR02A - MSW
Published CUSIP Number: 00000XXX0
CREDIT AGREEMENT
Dated as of November 30, 2018
among
SP PLUS CORPORATION,
as the Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and L/C Issuer,
and
THE LENDERS PARTY HERETO
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
BMO XXXXXX BANK N.A.,
JPMORGAN CHASE BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
XXXXX FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners
2
1204724.01-CHISR02A1204724.01D-CHISR02A - MSW
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
i
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ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
ARTICLE V REPRESENTATIONS AND WARRANTIES
ii
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ARTICLE VI AFFIRMATIVE COVENANTS
ARTICLE VII NEGATIVE COVENANTS
|
7.12 |
Amendments of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes. |
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iii
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ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
ARTICLE IX ADMINISTRATIVE AGENT
iv
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|
v
SCHEDULES
|
Schedule 1.01(a) |
Certain Addresses for Notices |
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Schedule 1.01(b) |
Initial Commitments and Applicable Percentages |
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Schedule 2.03 |
Existing Letters of Credit |
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Schedule 5.11 |
Taxes |
|
Schedule 5.18(a) |
Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments |
|
Schedule 5.18(b) |
Loan Parties |
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Schedule 5.19(b) |
Intellectual Property |
|
Schedule 5.22 |
Labor Matters |
|
Schedule 7.01 |
Existing Liens |
|
Schedule 7.02 |
Existing Indebtedness |
|
Schedule 7.03 |
Existing Investments |
EXHIBITS
|
Exhibit A |
Form of Administrative Questionnaire |
|
Exhibit B |
Form of Assignment and Assumption |
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Exhibit C |
Form of Compliance Certificate |
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Exhibit D |
Form of Joinder Agreement |
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Exhibit E |
Form of Loan Notice |
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Exhibit F |
Form of Note |
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Exhibit G |
Form of Secured Party Designation Notice |
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Exhibit H–1 to 4 |
Forms of U.S. Tax Compliance Certificates |
|
Exhibit I |
Form of Notice of Loan Prepayment |
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Exhibit J |
Form of Letter of Credit Report |
vi
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of November 30, 2018, by and among SP PLUS CORPORATION, a Delaware corporation (the “Borrower”), the Guarantors (as defined herein), the Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and an L/C Issuer.
PRELIMINARY STATEMENTS:
WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the Swingline Lender and the L/C Issuers make loans and other financial accommodations to the Loan Parties in an aggregate amount of up to Five-Hundred Fifty Million Dollars ($550,000,000).
WHEREAS, the Lenders, the Swingline Lender and the L/C Issuers have agreed to make such loans and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of: (a) a majority of the Voting Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest; or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person.
“Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements, and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided, that, Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
1
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders in writing.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the Person specified. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Credit Agreement.
“Applicable Percentage” means: (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by: (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at such time; and (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time; and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to (A) adjustments as a result of increases pursuant to Section 2.16 or as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make Revolving Loans, and the obligation of the L/C Issuers to make L/C Credit Extensions, have been terminated pursuant to Section 2.06 or Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b), in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16, as applicable.
“Applicable Rate” means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
|
Pricing Level |
Consolidated Leverage Ratio |
Base Rate |
Commitment Fee |
|
|
1 |
> 3.5 to 1.0 |
2.00% |
1.00% |
0.25% |
|
2 |
>2.5 to 1.0, but ≤ 3.5 to 1.0 |
1.75% |
0.75% |
0.20% |
|
3 |
> 1.5 to 1.0, but ≤ 2.5 to 1.0 |
1.50% |
0.50% |
0.175% |
|
4 |
≤ 1.5 to 1.0 |
1.25% |
0.25% |
0.15% |
2
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, that, if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the written request of the Required Lenders to the Administrative Agent and the Borrower, Pricing Level 1 shall apply, in each case, as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. In addition, at all times while the Default Rate is in effect, the highest rate set forth in each column of the Applicable Rate shall apply.
Notwithstanding anything to the contrary contained in this definition, (a) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b), and (b) the initial Applicable Rate shall be set forth in Pricing Level 2 from the Fifth Amendment Effective Date until the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) for the Fiscal Quarter ending March 31, 2019 to the Administrative Agent and (c) the Applicable Rate from the Third Amendment Effective Date until the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) for the Fiscal Quarter ending June 30, 2022 to the Administrative Agent shall be: (i) 2.75%, with respect to the Eurodollar Rate and Letter of Credit Fee, (ii) 1.75%, with respect to the Base Rate and (iii) 0.375%, with respect to the Commitment Fee. Any adjustment in the Applicable Rate shall be applicable to all applicable Credit Extensions then existing or subsequently made or issued (and are outstanding) during the period in which such Applicable Rate applies.
“Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.
“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrangers” means BofA Securities and Xxxxx Fargo Securities, LLC, in their capacities as joint lead arrangers and joint bookrunners.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party or other Person whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) reasonably approved by the Administrative Agent.
“Audited Financial Statements” means the most recent audited financial statements delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01(a).
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, subject to Section 1.03(b), (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in
3
accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capital Lease, (c) all Synthetic Debt of such Person, (d) in respect of any Securitization Transaction, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment, and (e) in respect of any Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.
“Audited Financial Statements” means the audited Consolidated balance sheet of the Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2017, and the related Consolidated statements of income or operations, stockholders’ equity and cash flows for such Fiscal Year of the Borrower and its Subsidiaries, including the notes thereto.
“Availability” means, at any time, the total of (a) the aggregate Revolving Commitments at such time, minus (b) the Total Revolving Outstandings at such time.
“Availability Period” means in respect of the Revolving Facility, the period from, and including, the Closing Date to the earliest of: (a) the Maturity Date; (b) the date of termination of the Revolving Commitments pursuant to Section 2.06; and (c) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans, and of the obligation of the L/C Issuers to make L/C Credit Extensions, pursuant to Section 8.02.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar RateTerm SOFR plus 1.00%, subject to the interest rate floors set forth therein; provided, that, if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Revolving Loan or a Term Loan that bears interest based on the Base Rate.
4
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“BofA Securities” means BofA Securities, Inc.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar RateTerm SOFR Loan, means any such day that is also a London BankingU.S. Government Securities Business Day.
“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations).
“Capital Lease” means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in accordance with GAAP, is accounted for as a capital lease on the balance sheet of such Person, subject, in each case, to the last paragraph of Section 1.03(b).
“Captive Insurance Subsidiary” means any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash on Hand” means, as of any day, the sum of the amount of all cash and Cash Equivalents of the Loan Parties and their Subsidiaries (excluding cash held for the benefit of third parties), on a consolidated basis, less the amount of any payments which have been issued by the Borrower and its Subsidiaries, but which have not yet cleared their respective accounts.
“Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or Swingline Lender (as applicable) or the Lenders, as collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of either thereof (as the context may require): (a) cash or deposit account balances; (b) backstop letters of credit entered into on terms, from issuers and in amounts reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer; and/or (c) if the Administrative Agent and the applicable L/C Issuer or Swingline Lender shall agree, in their sole reasonable discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance
5
reasonably satisfactory to the Administrative Agent and such L/C Issuer or Swingline Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means, as of any date, any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries:
(a)any evidence of Indebtedness, maturing not more than one year after such date, issued or guaranteed by the United States government or any agency or instrumentality thereof;
(b)any certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year after such date, or any overnight Federal Funds transaction that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000);
(c)commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, rated (unless issued by a Lender or its holding company) at least “Prime–1” (or the then equivalent grade) by Xxxxx’x or at least “A–1” (or the then equivalent grade) by S&P;
(d)Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Xxxxx’x or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition;
(e)any repurchase agreement entered into with any Lender or its holding company (or commercial banking institution of the nature referred to in clause (b) above) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (d) above and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder;
(f)money market accounts or mutual funds which invest exclusively in assets satisfying the foregoing requirements;
(g)securities issued or directly and fully guaranteed or insured by any state, commonwealth or territory of the United States (provided, that, the full faith and credit of such state, commonwealth or territory is pledged in support thereof) or by any political subdivision or taxing authority of any such state, commonwealth or territory (provided, that, the full faith and credit of such political subdivision or territory is pledged in support thereof) and, in each case, having maturities of not more than one year from the date of issue and rated at least A-1 (or the equivalent thereof) by S&P or Prime-1 (or the equivalent thereof) by Xxxxx’x;
(h)solely with respect to Foreign Subsidiaries, investments of the types and maturities described in clause (a) through (g) above issued, where relevant, by a Lender, its holding company or any of their Affiliates (or any commercial banking institution of the nature referred to in clause (b) above or any of its Affiliates) or any commercial bank of recognized international standing chartered in the country where such Foreign Subsidiary is domiciled having combined capital and surplus and undivided profits of not less than $500,000,000; and
6
(i)other short term liquid investments approved in writing by the Administrative Agent.
“Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party, in each case in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, that, for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent and the Borrower prior to such date of determination.
“Central Parking Finance Trust” means Central Parking Finance Trust, a Delaware Trust.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or, issued or implemented.
“Change of Control” means an event or series of events by which:
(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d–3 and 13d–5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of Equity Interests of the Borrower representing fifty percent (50%) or more of the aggregate voting power represented by the issued and outstanding Equity Interests of the Borrower entitled to vote for members of the board of directors of the Borrower on
7
a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or
(b) during any period of twelve (12) consecutive months, a majority of the members of the board of directors of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board; or
(b)(c) the occurrence of a “change of control”, “fundamental change” or similar occurrence in respect of Permitted Convertible Indebtedness and giving rise to a right to payment or purchase prior to scheduled maturity or an exercise of rights and remedies thereunder or in respect thereof.
“Closing Date” means the date hereof.
“Closing Date Acquisition” means the Acquisition by the Borrower on the Closing Date of all of the Equity Interests in ZWB Holdings Inc., a Florida corporation and Rynn’s Luggage Corporation, a Pennsylvania corporation (collectively, the “Closing Date Targets”), pursuant to the Closing Date Acquisition Documents.
“CME” means CME Group Benchmark Administration Limited.
“Closing Date Acquisition Documents” means the Stock Purchase Agreement dated as of October 16, 2018, by and among the Borrower, the Closing Date Targets and Xxxxx Xxxxxx, as the “Seller” (as defined therein), and all other material documents, agreements and instruments relating to the Closing Date Acquisition, in each case including all material schedules and exhibits to such Stock Purchase Agreement.
“Closing Date Targets” has the meaning set forth in the definition of “Closing Date Acquisition”.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is, or is intended under the terms of the Collateral Documents to be, subject to Liens granted by any Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Secured Obligations. For the avoidance of doubt, no Excluded Property shall at any time be Collateral.
“Collateral Documents” means, collectively, the Security Agreement, each Joinder Agreement, each of the collateral assignments, security agreements, pledge agreements or other similar collateral agreements delivered to the Administrative Agent pursuant to Section 6.14, and each of the other agreements, instruments or documents that creates or purports to create a Lien in any Collateral of any Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Secured Obligations.
“Commitment” means a Term Commitment or a Revolving Commitment, as the context may require.
8
“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.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR”, and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent (in consultation with the Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Borrower) is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated” means, when used with reference to financial statements or financial statement items of (a) the Borrower and its Subsidiaries or (b) any other Person, as applicable, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.
“Consolidated EBITDA” means, for any Measurement Period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such Measurement Period plus:
(a)the following (without duplication), in each case, to the extent, and only to the extent, deducted in calculating such Consolidated Net Income (or, in the case of amounts pursuant to clause (a)(xiii) below, not already included in Consolidated Net Income), all as determined in accordance with GAAP:
(i)Consolidated Interest Charges for such Measurement Period;
(ii)Tax expensesprovision for taxes based on income, profits or capital, including state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued, including any penalties and interest relating to any tax examinations for such Measurement Period;
(iii)depreciation and amortization expense for such Measurement Period;
(iv)any losses, costs and expenses from the sale, exchange, transfer or other Disposition or Involuntary Disposition of property or assets not in the ordinary course of business of the Borrower and its Subsidiaries during such Measurement Period, and related tax effects in accordance with GAAP;
(v)all non-cash items, expenses or charges reducing Consolidated Net Income for such Measurement Period (excluding any such expenses or charges related to accounts
9
receivable or rent) which do not represent a cash item in such period or which, as of the time of the initial determination thereof by the Borrower, is not reasonably expected to represent a cash item in any future period;
(vi)fees, costs, and expenses of the Borrower and its Subsidiaries incurred in connection with the TransactionsFifth Amendment (to the extent not capitalized) and incurred within six (6) months after the ClosingFifth Amendment Effective Date;
(vii)integration costs and expenses directly related to the Closing Date Acquisition, any Permitted Acquisition, other Acquisition or Investment permitted hereunder and, in each case, incurred during such Measurement Period and within twelve (12) months after the date of consummation of the Closing Date Acquisition, such Permitted Acquisition, other Acquisition or Investment permitted hereunder; provided, that, such costs and expenses are certified in a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent and in form and detail reasonably satisfactory to the Administrative Agent;
(viii)any non-cash compensation expenses (including expenses related to the Borrower’s restricted stock grants under its long-term incentive plan) in an aggregate amount not to exceed $15,000,000 during any Measurement Period;
(ix)to the extent (A) actually reimbursed in (1) such Measurement Period or (2) an earlier Measurement Period if not added back to Consolidated EBITDA in such earlier Measurement Period or (B) reasonably expected to be reimbursed within the next Fiscal Quarter period after the Measurement Period for which such losses or expenses are incurred, losses and expenses incurred during such Measurement Period to the extent covered by insurance, indemnification, reimbursement, guaranty, or purchase price adjustment provisions in any agreement in connection with a Permitted Acquisition, other Acquisition, Investment or other transaction permitted hereunder;
(x)fees, costs and expenses of the Borrower and its Subsidiaries during such Measurement Period (including consulting, appraisal, accountant, advisor and legal services) in each case in connection with Investments permitted under Section 7.03, Dispositions or Involuntary Dispositions permitted under Section 7.05, Permitted Acquisitions, issuances of Indebtedness permitted under Section 7.02, issuances of Qualified Capital Stock of the Borrower, extinguishments or conversion of Indebtedness or arrangements under Swap Obligations or other derivative instruments and including, in each case, any amendments, amendments and restatements, supplements, waivers, consents, forbearances, extensions, refinancings and other modifications to any of the foregoing in this clause (x) (in each case of the foregoing in this clause (x), whether or not consummated, including, both those transactions that were not consummated because the Borrower determined that such transaction would not have been permitted under this Agreement at the time and those that would have been permitted under this Agreement if such transaction would have been consummated) in an aggregate amount not to exceed the greater of (A) $18,000,000 and (B) fifteen percent (15%) of Consolidated EBITDA for such Measurement Period (calculated before giving effect to this clause (x));
(xi)any non-cash losses (including deferred financing expenses written off) under any Swap Obligation, extinguishment or conversion of Indebtedness, arrangements under Swap Obligations or other derivative instruments during such Measurement Period;
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(xii)restructuring costs and expenses (including employee severance costs and termination benefits) of the Borrower and its Subsidiaries, in an aggregate amount not to exceed $5,000,00010,000,000 during any Measurement Period;
(xiii) proceeds from business interruption insurance in an amount representing the earnings for such Measurement Period that such proceeds are intended to replace (to the extent not reflected as revenue or income in Consolidated Net Income) received in such Measurement Period or reasonably expected to be received within the next Fiscal Quarter period after the Measurement Period;
(xiii)(A) expenses with respect to any liability or casualty event or business interruption to the extent such expenses are covered by insurance and actually reimbursed to the Borrower or any Subsidiary by the insurer during such Measurement Period or the Borrower has made a good faith determination that there exists reasonable evidence that such expenses will in fact be reimbursed to the Borrower or any Subsidiary by the insurer in the 12 months after the date on which such liability was discovered or such casualty event or business interruption occurred, but only to the extent that (x) reimbursement of such expenses has not been denied by the insurer in writing and (y)(I) such expenses are in fact reimbursed by the insurer within 12 months after the date on which such liability was discovered or such casualty event or business interruption occurred (with a deduction for any amounts so added back that are not in fact so reimbursed within such 12 month period) or (II) the insurer has notified the Borrower within such 12 month period that it will remit funds in respect of such expenses and (B) the aggregate amount of business interruption insurance proceeds representing lost earnings for such Measurement Period that such proceeds are intended to replace (without duplication for any amounts included in Consolidated Net Income) to the extent actually received by the Borrower or any Subsidiary during such Measurement Period or the Borrower has made a good faith determination that there exists reasonable evidence that such proceeds will in fact be received by the Borrower or any Subsidiary in the 12 months after the date on which such business interruption occurred, but only to the extent that (x) payment of such proceeds has not been denied by the insurer in writing and (y)(I) such proceeds are in fact received by the Borrower or any Subsidiary within 12 months after the date on which such business interruption occurred (with a deduction for any amounts so added back that are not in fact so received within such 12 month period) or (II) the insurer has notified the Borrower within such 12 month period that it will remit funds in respect of such expenses;;
(xiv)fees, costs and expenses related to the incurrence of Incremental Facilities, amendments, amendments and restatements, supplements, waivers, consents, forbearances, extensions, refinancings, Joinder Agreements and other modifications of the Loan Documents (in each case, whether or not consummated);
(xv)earn-out obligations and other post-closing obligations to sellers (including transaction tax benefit payments or to the extent accounted for as bonuses or otherwise) incurred in connection with any Permitted Acquisition or other Investment (including any acquisition or other investment consummated prior to the Fifth Amendment Effective Date) or adjustments thereof, which is paid or accrued during the applicable period;
(xvi)the effects of purchase accounting , fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments pushed down to any Person’s subsidiaries) resulting from the application of purchase accounting,
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fair value accounting or recapitalization accounting in connection with a Permitted Acquisition, other Acquisition, Investment or other transaction permitted hereunder, and the amortization, write-down or write-off of any amounts thereof, net of taxes, will be excluded;
(xvii)non-cash charges resulting from the write-off of Capital Expenditures;
(xviii)any loss, charge, expense, accruals or settlement with respect to litigation not to exceed $5,000,000 in the aggregate for such Measurement Period; and
(xix)without duplication, (1) the amount of “run rate” cost savings, operating expense reductions and cost synergies related to the Amendment, any Specified Transaction, any restructuring, cost saving initiative or other initiative that are projected by the Borrower in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken or initiated on or prior to the date that eighteen (18) months after the date of consummation of the Fifth Amendment, each Specified Transaction, restructuring, cost saving initiative or other initiative, in each case, as applicable, (which cost savings shall be added to Consolidated EBITDA for each Measurement Period until fully realized and shall be calculated on a pro forma basis as though such cost savings had been realized on the first day of the relevant Measurement Period, net of the amount of actual benefits realized from such actions); provided further that (A) such cost savings are reasonably identifiable and factually supportable, (B) no cost savings, operating expense reductions or cost synergies shall be added pursuant to this clause (xix) to the extent duplicative of any expenses or charges relating to such cost savings, operating expense reductions or cost synergies that are included in clauses (i)–(xviii) above or otherwise added back in the computation of Consolidated EBITDA (whether through a pro forma adjustment or otherwise) for such period (it being understood and agreed that “run rate” shall mean the full recurring benefit that is associated with any action taken) and (C) the aggregate amount added to Consolidated EBITDA pursuant to this clause (xix), in an aggregate amount not to exceed ten percent (10%) of Consolidated EBITDA for such Measurement Period without giving effect to this clause (xix);
minus
(b)the following (without duplication), in each case, to the extent, and only to the extent included in calculating such Consolidated Net Income, all as determined in accordance with GAAP:
(i)any gains from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of business of the Borrower and its Subsidiaries during such Measurement Period and related tax effects in accordance with GAAP;
(ii)the proceeds of any insurance policy (other than proceeds of business interruption policies referenced in clause (a)(xiii) above)) received by the Borrower or any Subsidiary during such Measurement Period;
(iii)interest income of the Borrower and its Subsidiaries for such Measurement Period;
(iv)all non-cash items increasing Consolidated Net Income for such Measurement Period (excluding items related to rent);
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(v)any non-cash gains under any Swap Obligations during such Measurement Period;
plus
(c)income for such Measurement Period attributable to minority interests in an aggregate amount not to exceed $6,000,000 for any Measurement Period, as determined in accordance with GAAP;
minus
(d)any loss relating to Swap Obligations that is realized in the current Measurement Period and has been added back to Consolidated Net Income for the same or any prior Measurement Period pursuant to the preceding clause (a)(xi); provided, that, such loss shall be treated as realized when the cash impact resulting therefrom has been realized, in the amount of such impact;
plus
(e)any gain relating to Swap Obligations that is realized in the current Measurement Period and has been deducted from Consolidated Net Income for the same or any prior Measurement Period pursuant to the preceding clause (b)(v); provided, that, such gain shall be treated as realized when the cash impact resulting therefrom has been realized, in the amount of such cash impact;
(f)any gain from litigation recoveries;
provided, that, notwithstanding the foregoing, for purposes of determining Consolidated EBITDA for any Measurement Period that includes any of the Fiscal Quarters ended December 31, 2017, March 31, 2018, June 30, 2018 and September 30, 2018, Consolidated EBITDA shall be deemed for such Fiscal Quarter to be $27,830,000, $25,429,000, $38,087,000, and $33,021,000, respectively, in each case, as may be subject to adjustments pursuant to the definition of “Pro Forma Basis” during the applicable Measurement Period for transactions occurring after the Closing Date. For the avoidance of doubt, Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with the definition of “Pro Forma Basis”.
“Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Subsidiaries on a Consolidated basis, the sum of (without duplication): (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including the Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all purchase money Indebtedness; (c) the maximum amount available to be drawn under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances and bank guaranties (but excluding surety bonds); (d) all obligations in respect of the deferred purchase price of property or services (excluding (i) Earnouts, (ii) purchase price adjustments, (iii) trade accounts payable in the ordinary course of business (including on an intercompany basis), (iv) any such obligations incurred under ERISA and (v) liabilities associated with customer prepayments and deposits); (e) all Attributable Indebtedness;[reserved]; (f) all mandatory obligations to purchase, redeem, retire, defease or otherwise make any payment, in each case, prior to the Maturity Date, in respect of any Disqualified Stock of the Borrower or its Subsidiaries, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference; (g) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Borrower or any Subsidiary; and (h) all Indebtedness of the types referred to in clauses (a) through (g)
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above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is not recourse to the Borrower or such Subsidiary. For the avoidance of doubt, “Consolidated Funded Indebtedness” shall not include any Indebtedness solely among the Loan Parties and their Subsidiaries.
“Consolidated Interest Charges” means, for any Measurement Period, the sum of (without duplication): (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations, and (c) the portion of rent expense under Capital Leases that is treated as interest in accordance with GAAP, in each case, of or by the Borrower and its Subsidiaries on a Consolidated basis for such Measurement Period.
“Consolidated Interest Coverage Ratio” means, as of any date of determination for any Measurement Period, the ratio of: (a) Consolidated EBITDA for such Measurement Period to (b) the cash portion of Consolidated Interest Charges for such Measurement Period; provided, that, for purposes of calculating Consolidated Interest Charges for the Consolidated Interest Coverage Ratio for any Measurement Period on or prior to the last day of the fourth full Fiscal Quarter ended after the Closing Date, the amounts calculated pursuant to clause (b) of this definition shall be an amount equal to such amounts from the Closing Date through the last day of such Measurement Period multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days during the period commencing on the Closing Date and ending on the last day of such Measurement Period.
“Consolidated Leverage Ratio” means, as of any date of determination for any Measurement Period, the ratio of: (a) Consolidated Funded Indebtedness as of such date minus Indebtedness of the Borrower and its Subsidiaries under Letters of Credit and any other letters of credit outstanding as of such date, in an aggregate amount not to exceed $100,000,000 minus Unrestricted Cash as of such day, in an aggregate amount not to exceed $30,000,000 to (b) Consolidated EBITDA for such Measurement Period; provided that, for purposes of calculating the Consolidated Leverage Ratio:.
(i) as of the end of the Fiscal Quarter ending September 30, 2021, Consolidated EBITDA shall be the actual amount of Consolidated EBITDA for the period of one Fiscal Quarter then ended multiplied by four (4);
(ii) as of the end of the fiscal quarter ending December 31, 2021, Consolidated EBITDA shall be the actual amount of Consolidated EBITDA for the period of two Fiscal Quarters then ended multiplied by two (2); and
(iii) as of the end of the fiscal quarter ending March 31, 2022, Consolidated EBITDA shall be the actual amount of Consolidated EBITDA for the period of three fiscal quarters then ended multiplied by one and one-third (1 1/3).
“Consolidated Net Income” means, for any Measurement Period, the net income (or loss) of the Borrower and its Subsidiaries on a Consolidated basis for such Measurement Period; provided, that, Consolidated Net Income shall exclude (a) extraordinary, unusual and non-recurring gains and losses for such Measurement Period, (b) gains and losses attributable to discontinued operations (as determined in accordance with GAAP) and (c) the net income of (i) any Subsidiary or (ii) any other Person (including any Subsidiary or Joint Venture but excluding, in each case, any Loan Party and any Wholly-Owned Domestic Subsidiary) in which any Person other than the Borrower or any of its Subsidiaries has a joint interest or partnership interest or other ownership interest, in each case, to the extent that the declaration or payment of dividends or similar distributions by such Person of such income is not at the time permitted by operation
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of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Person, except to the extent of the amount of dividends or other distributions that are actually paid in cash to the Borrower, any other Loan Party or any Wholly-Owned Subsidiary during such Measurement Period; provided, that, in the case of a dividend or other distribution to a Wholly-Owned Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower as described in this clause (b).
“Consolidated Total Assets” means, at any time, the consolidated total assets of the Borrower and its Subsidiaries, determined in accordance with GAAP.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Covenant Holiday Period” means a period of four consecutive Fiscal Quarters if, as of the last day of the first Fiscal Quarter of such period, the Borrower shall have notified the Administrative Agent that (i) it elects to utilize a Covenant Holiday Period and (ii) it has consummated one or more Permitted Acquisitions during such fiscal quarter involving aggregate consideration (including the projected amount of any earnout or purchase price adjustments estimated in good faith by a Responsible Officer of the Borrower as of the date a Covenant Holiday Period election is made pursuant to the preceding clause (i) but excluding consideration consisting of equity interests of the Borrower or cash proceeds from the issuance or sale of equity interests of the Borrower) for all such acquisitions during such fiscal quarter in excess of $50,000,000; provided, however, that (i) the Borrower may only make two such elections following the Effective Date and (ii) a new Covenant Holiday Period may not be elected for at least one fiscal quarter following the end of the initial Covenant Holiday Period.
“Covered Entity” means any of the following, (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Extension” means each of the following: (a) a Borrowing; and (b) an L/C Credit Extension.
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.02.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
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“Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2.0%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2.0%), in each case, to the fullest extent permitted by applicable Law.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith and reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or waived, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith and reasonable 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 and has not otherwise been waived), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided, that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority, so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets, or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status, shall be prima facie evidence thereof absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including (x) any Sale and Leaseback Transaction and (y) any issuance by a Subsidiary of its Equity Interests) of any property by any Loan Party or Subsidiary (or the granting of any binding option or other right to do any of
16
the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Involuntary Disposition.
“Disqualified Institution” means, on any date, (a) those financial institutions and other institutional lenders and Persons that have been identified in writing by the Borrower (or its attorneys) to the Administrative Agent (or its attorneys) on October 15, 2018, (b) any other Person that is a competitor of (or otherwise competing with) the Borrower or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (by posting such notice to the Platform) not less than two (2) Business Days prior to such date, and (c) any known Affiliate of the foregoing readily identifiable by name (but excluding any Affiliate that is primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course of business); provided, that, (i) “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from time to time and (ii) the Borrower shall be permitted to supplement the list in clause (b) above after the Closing Date by giving notice as provided in clause (b) hereof, but which supplement shall not apply to assignments and participations entered into by any Person in accordance and compliance with this Agreement prior to such supplement being posted for the Lenders on the Platform.
“Disqualified Stock” means any class of Equity Interests that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, or otherwise has any distributions or other payments which are mandatory or otherwise required at any time on or prior to the date that is ninety-one (91) days after the Maturity Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities, or (ii) any Equity Interests referred to in clause (a) above, in each case, at any time prior to the date that is ninety-one (91) days after the Maturity Date; provided, that, in each case of the foregoing and notwithstanding anything to the contrary in the Loan Documents, any payment or conversion that is required solely due to a customary change of control provision or similar event that is not more restrictive than the Change of Control default in this Agreement shall not cause such Equity Interest to be deemed Disqualified Stock; provided, further, that, any Equity Interests that are issued pursuant to a plan for the benefit of employees of the Borrower (or any direct or indirect parent thereof) or any other Loan Party or any of their Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Stock solely because they may be required to be repurchased by a Loan Party or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“DQ List” has the meaning specified in Section 11.06(g)(iv).
“Earnouts” means any payment which may be owing by any Person in connection with any Permitted Acquisition, Acquisition or similar Investment, which payment is contingent upon the earnings or financial or other performance or operations or other indicators of the assets or stock being acquired pursuant to such Acquisition or similar Investment.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
17
established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). For the avoidance of doubt, no Disqualified Institution shall be an Eligible Assignee.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, written agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment, or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. For the avoidance of doubt, “Equity Interests” shall not include Permitted Convertible Indebtedness.
“Equity Issuance” means any issuance by the Borrower to any Person of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the conversion of any debt securities to equity or the conversion, replacement or exchange of any class of equity securities to any other class of equity securities, (c) any issuance of options or warrants relating to its Equity Interests, (d) any issuance by the Borrower of its Equity
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Interests as consideration for a Permitted Acquisition, other Acquisition, other Investment (other than an Investment of cash or Cash Equivalents), Capital Expenditure or the acquisition of fixed assets or Equity Interests of a Subsidiary or Joint Venture, (e) any issuance of its Equity Interests pursuant to any officer, employee or director option program, benefit plan or compensation program, and (f) any issuance of fractional shares. The term “Equity Issuance” shall not be deemed to include any Disposition, issuance of any Indebtedness or granting of a Lien on any Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.
“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.
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), or a comparable or successor rate which rate is reasonably approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be reasonably designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 10:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 10:00 a.m., London time, two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day;
provided, that: (i) to the extent a comparable or successor rate is reasonably approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice, provided, further, that, to the extent such market practice is not administratively feasible for the
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Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; and (ii) if the Eurodollar Rate shall be less than one percent (1.0%), such rate shall be deemed one percent (1.0%) for purposes of this Agreement.
“Eurodollar Rate Loan” means a Revolving Loan or a Term Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Property” means, with respect to any Loan Party: (a) any owned or leased real property; (b) any Intellectual Property for which a perfected Lien thereon is not effected either by the filing of a UCC financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office; (c) any personal property (other than personal property described in clause (b) above) (including, without limitation, motor vehicles) for which (i) the attachment or perfection of a Lien thereon is not governed by the UCC or (ii) the creation or granting of a Lien thereon is not governed by the UCC, the laws of the United States or the Laws of any state of the United States; (d) the Equity Interests of any Foreign Subsidiary, Foreign Holdco, Immaterial Subsidiary, Joint Venture or other Subsidiary of any Loan Party, to the extent not required to be pledged to secure the Secured Obligations pursuant to the Section 6.14; (e) any property which is subject to a Lien of the type described in Section 7.01(i) pursuant to documents that prohibit such Loan Party from granting any other Liens (or requires the consent of the holder of such Lien in order for such Loan Party to xxxxx x Xxxx) in such property; (f) (i) any property to the extent that the grant of a security interest in such property to the Administrative Agent, for the benefit of the Secured Parties, is prohibited by Law or requires a consent not obtained from any Governmental Authority or any other Person (other than, for the avoidance of doubt, the Borrower or any Subsidiary), and (ii) any rights or property under any lease, Capital Lease, purchase money arrangement, contract, license or other agreement or any General Intangible or Intellectual Property (in each case, as defined in the Security Agreement), in each case, to the extent the grant of a security interest pursuant to the Collateral Documents (x) would invalidate the underlying right or provisions of the Borrower or any Guarantor in such lease, Capital Lease, purchase money arrangement, contract, license, agreement, General Intangible or Intellectual Property, (y) is prohibited by such lease, Capital Lease, purchase money arrangement, contract, license, agreement, Intellectual Property or General Intangible without the consent of the parties thereto required to consent to such grant of a security interest, or (z) would give any other party to such lease, Capital Lease, purchase money arrangement, contract, license, agreement, Intellectual Property or General Intangible the right to terminate its obligations thereunder, in each case, solely to the extent that any such restriction shall be enforceable under the UCC and other applicable Law, and unless and until all necessary consents to such grant of a security interest have been obtained from the other parties thereto (it being understood and agreed that the Loan Parties and their Subsidiaries shall have no obligation or duty to try to obtain any such consents); (g) any “intent to use” trademark applications for which a statement of use has not been filed with the United States Patent and Trademark Office or other applicable office; (h) any property of which a security interest granted thereon, or any perfection of any such security interest, would cause adverse tax consequences for the Borrower and/or any of its Subsidiaries (as reasonably determined by the Borrower in consultation with the Administrative Agent); and (i) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost of obtaining a security interest are excessive relative to the benefit to the Lenders of the security to be afforded thereby.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to
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constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other “keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower pursuant to Section 3.06(b)), or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any withholding Taxes imposed pursuant to FATCA.
“Existing Letters of Credit” means those certain Letters of Credit set forth on Schedule 2.03.
“Facility” means the Term Facility or the Revolving Facility, as the context may require.
“Facility Leases” means agreements for the lease by the Borrower or any of its Subsidiaries or Joint Ventures of real estate utilized (a) as a vehicle parking facility and/or for ancillary parking and transportation services or (b) for travel and hospitality services to airlines, theme parks, resorts, hotels, airports, parking lots and/or cruise ports.
“Facility Management Agreement” means any agreement (other than the Facility Leases), for the provision by the Borrower or any of its Subsidiaries or Joint Ventures of (a) services for the management or operation of a vehicle parking facility and/or ancillary parking and transportation services, including, without limitation, any such agreement designated as a management agreement, parking enforcement agreement, operating agreement or license agreement, and/or (b) travel and hospitality services to airlines, theme parks, resorts, hotels, airports, parking lots and/or cruise ports, including, without limitation, remote check-in services, baggage sorting, handling and delivery services, skycap and wheelchair services, valet and self-parking services and luggage repair and replacement services.
“Facility Termination Date” means the date as of which all of the following shall have occurred: (a) all of the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than (i) contingent indemnification obligations and expense reimbursement obligations for which no claim has been asserted and (ii) Letters of Credit (which are covered by clause (c) below)), and (c) all Letters of Credit have terminated, expired or been Cash Collateralized (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent and the L/C Issuer shall have been made).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
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“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that, if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter” means the letter agreement, dated October 19, 2018the Fifth Amendment Effective Date, between the Borrower, the Administrative Agent and MLPFSBofA Securities.
“Fifth Amendment” means that certain Fifth Amendment, dated as of the Fifth Amendment Effective Date, among the Borrower, the Guarantors, the Lenders party thereto, the Administrative Agent and Bank of America as Swingline Lender and L/C Issuer.
“Fifth Amendment Effective Date” means April 21, 2022.
“Fiscal Quarter” means a fiscal quarter of a Fiscal Year.
“Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries, which period shall be the 12-month period ending on December 31 of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2018” or “2018 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such calendar year.
“Foreign Holdco” means any Subsidiary of the Borrower organized in the United States substantially all the assets of which are Equity Interests or Indebtedness of Foreign Subsidiaries.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fourth Amendment Effective Date” means February 16, 2021.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
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“Funding Indemnity Letter” means a funding indemnity letter, in form and substance reasonably satisfactory to the Administrative Agent.
“GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided, however, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product or service warranties, indemnities or other similar contingent obligations incurred in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 10.01.
“Guarantors” means, collectively, (a) each Subsidiary of the Borrower identified as a “Guarantor” on the signature pages hereto, (b) Wholly-Owned Domestic Subsidiaries that are direct Domestic Subsidiaries of a Loan Party (and are not Immaterial Subsidiaries) that are, or may from time to time become, parties to this Agreement pursuant to Section 6.13, and (c) with respect to Additional Secured Obligations owing by any Loan Party and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower. It is understood and agreed that the Borrower and its Subsidiaries shall not be required to cause (x) APCOA Xxxxxxx Parking Company, LLC (“APCOA Xxxxxxx”) to become a Guarantor so long as either (1) APCOA Xxxxxxx’x
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Organization Documents prohibit APCOA Xxxxxxx from acting as a Guarantor or (2) APCOA Xxxxxxx is an Immaterial Subsidiary or (y) Central Parking Finance Trust to become a Guarantor.
“Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with each other guaranty delivered by any Guarantor pursuant to Section 6.13.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated as hazardous pursuant to any Environmental Law.
“Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract with a Loan Party not prohibited under Article VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract with a Loan Party not prohibited under Article VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, that, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement; and provided, further, that, that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent and the Borrower prior to such date of determination.
“Honor Date” has the meaning set forth in Section 2.03(c).
“Immaterial Subsidiary” means, at any time, any Subsidiary (including any Foreign Subsidiary but excluding (x) any Designated Subsidiary and (y) any Wholly-Owned Domestic Subsidiary that is a Guarantor) that, together with its Subsidiaries, (a) as of the last day of the Measurement Period, did not have total assets in excess of (i) five percent (5.0%) of the Consolidated Total Assets of the Borrower and its Subsidiaries as of the last day of such Measurement Period and (ii) together with all other Immaterial Subsidiaries and their respective Subsidiaries, ten percent (10.0%) of the Consolidated Total Assets of the Borrower and its Subsidiaries as of the last day of such Measurement Period in the aggregate and (b) for the Measurement Period, did not have (i) Consolidated EBITDA attributable to it for such period constituting five percent (5.0%) or more of the Consolidated EBITDA of the Borrower and its Subsidiaries for such Measurement Period, and (ii) together with all other Immaterial Subsidiaries, Consolidated EBITDA attributable to such Immaterial Subsidiaries for such Measurement Period constituting ten percent (10.0%) or more of the Consolidated EBITDA of the Borrower and its Subsidiaries for such Measurement Period, for all Immaterial Subsidiaries and their respective Subsidiaries in the aggregate; provided, that, as of the end of any Measurement Period, if any condition set forth in clause (a) or (b) above is not satisfied, the Borrower shall designate one or more of such Immaterial Subsidiaries as no longer being Immaterial Subsidiaries (each a “Designated Subsidiary”) and shall cause such Designated Subsidiaries to comply with the applicable provisions of this Agreement and the other Loan Documents, such that, after such designation, the remaining Immaterial Subsidiaries shall meet the criteria in clauses (a) and (b) above.
“Immaterial Wholly-Owned Domestic Subsidiary” means, at any time, any Wholly-Owned Domestic Subsidiary that, together with all other Wholly-Owned Domestic Subsidiaries that are not Guarantors at such time, (a) as of the last day of the Measurement Period, did not have total assets in excess of five percent (5.0%) of Consolidated Total Assets of the Borrower and its Subsidiaries as of the end of such Measurement Period, and (b) for the applicable Measurement Period, did not have Consolidated EBITDA attributable to them for such Measurement Period constituting more than five percent (5.0%) of Consolidated EBITDA of the Borrower and its Subsidiaries for such Measurement Period; provided, that, if at any time there are Immaterial Wholly-Owned Domestic Subsidiaries that, collectively, (x) as of the last day of such Measurement Period, have total assets in excess of five percent (5.0%) of Consolidated Total Assets of the Borrower and its Subsidiaries as of the end of such Measurement Period or (y) for the applicable Measurement Period, have Consolidated EBITDA attributable to them for such Measurement Period constituting more than five percent (5.0%) of
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Consolidated EBITDA of the Borrower and its Subsidiaries for such Measurement Period, then the Borrower shall designate one or more of such Wholly-Owned Domestic Subsidiaries as no longer being Immaterial Wholly-Owned Domestic Subsidiaries and shall cause such Wholly-Owned Domestic Subsidiaries that are no longer Immaterial Wholly-Owned Domestic Subsidiaries to comply with the provisions of Section 6.13, such that, after such designated Wholly-Owned Domestic Subsidiaries become Guarantors hereunder, the remaining Immaterial Wholly-Owned Domestic Subsidiaries shall meet the criteria in clauses (x) and (y) above.
“Incremental Cap” means, on any date of determination, the sum of (a) (i) $200,000,000, plus (ii) the amount of any voluntary prepayments of the Term Facility (or any Incremental Term Facility (ranking pari passu with the Term Loans made on the Closing Date) incurred in reliance on clause (a)(i) after the Closing Date), plus (iii) the amount of any voluntary prepayments of the Revolving Facility (to the extent made concurrently with a permanent reduction of the Revolving Commitments pursuant to Section 2.06) after the Closing Date) plus (b) any amount so long as, after giving effect thereto, the Consolidated Leverage Ratio determined on a Pro Forma Basis for the most recent Measurement Period (assuming that the full amount of the Incremental Facility shall have been funded on such date) would not exceed the lesser of (i) 3.243.25:1.0, and (ii) the maximum Consolidated Leverage Ratio then permitted under Section 7.11(b) for the most recently ended Measurement Period for which the Borrower has delivered or filed financial statements pursuant to Section 6.01(a) or Section 6.01(b); provided, that, in the case of an Incremental Term Facility incurred to finance any Limited Condition Transaction, the Consolidated Leverage Ratio tests above may be determined on the LCT Test Date as set forth in Section 1.09.
“Incremental Facility Amendment” has the meaning specified in Section 2.16.
“Incremental Facility” has the meaning specified in Section 2.16.
“Incremental Request” has the meaning specified in Section 2.16.
“Incremental Revolving Commitments” has the meaning specified in Section 2.16.
“Incremental Revolving Loans” has the meaning specified in Section 2.16.
“Incremental Term Facility” has the meaning specified in Section 2.16.
“Incremental Term Loans” has the meaning specified in Section 2.16.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
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(c)net obligations of such Person under any Swap Contract;
(d)all obligations owed (including, without limitation, Earnouts once they become a liability on the balance sheet in accordance with GAAP and for so long as they remain unpaid and overdue) of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business (including on an intercompany basis), (ii) any purchase price adjustment, (iii) any obligations incurred under ERISA, (iv) accrued expenses and (v) liabilities associated with customer prepayments and deposits) to the extent the same would appear as a liability on a balance sheet prepared in accordance with GAAP;
(e)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)all Attributable Indebtedness of such Person[reserved];
(g)all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment (other than a payment (i) in Qualified Capital Stock or (ii) in connection with any Permitted Hedge Transaction) prior to the Maturity Date in respect of any Disqualified Stock of such Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference; and
(h)all Guarantees of such Person in respect of any of the foregoing;
provided, that, notwithstanding anything to the contrary herein, (i) the amount of Indebtedness of any Person for purposes of clause (e) above shall 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 and (ii) the term “Indebtedness” shall not include: (A) deferred rent, (B) deferred revenue, (C) deferred taxes and deferred compensation, (D) customary obligations under employment arrangements, (E) operating leases, (F) accrued expenses and (G) customary payables with respect to money orders or wire transfers.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is made non-recourse to such Person or such Person’s liability for such Indebtedness is otherwise limited. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Intellectual Property” has the meaning specified in Section 5.21.
“Intercompany Debt” has the meaning specified in Section 7.02.
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“Interest Payment Date” means, (a) as to any EurodollarLoan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, that, if any Interest Period for a Eurodollar RateTerm SOFR Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last day of each March, June, September and December and the Maturity Date.
“Interest Period” means, as to each Eurodollar RateTerm SOFR Loan, the period commencing on the date such Eurodollar RateTerm SOFR Loan is disbursed or converted to or continued as a Eurodollar RateTerm SOFR Loan and ending on the date one (1), two (2), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the Borrower in its sole discretion in its Loan Notice, or such other period that is twelve (12) months or less requested by the Borrower and consented to by all of the Appropriate Lenders; provided, that:
(a)any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)any Interest Period pertaining to a Term SOFR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)no Interest Period shall extend beyond the Maturity Date.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt for borrowed money of, or purchase or other acquisition of any other debt for borrowed money of another Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any repayments of principal in the case of Investments in the form of loans and any return of capital or return on Investment in the case of equity Investments (whether as a redemption, sale or distribution that constitutes a return of capital but not dividends or like distributions that do not constitute a return of capital and, in any case,or any other returns on such Investments not in excess of the amount of the initial Investment).
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any Subsidiary.
“IRS” means the United States Internal Revenue Service.
“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 in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
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“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions of Section 6.13.
“Joint Venture” means any corporation, limited or general partnership, limited liability company, association, trust or other business entity of which the Borrower or one or more Subsidiaries owns beneficially at least 25.0% but less than or equal to 50.0% of the Equity Interests of such Person.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means with respect to a particular Letter of Credit, (a) Bank of America, in its capacity as issuer of Letters of Credit, or any successor issuer thereof, (b) Xxxxx Fargo Bank, N.A., in its capacity as issuer of the Existing Letters of Credit issued (or deemed issued) on the Closing Date, (c) such other Revolving Lender selected by the Borrower pursuant to Section 2.03(l) from time to time to issue such Letter of Credit (provided, that, no Lender shall be required to become an L/C Issuer pursuant to this clause (c) without such Lender’s consent), or any successor issuer thereof, or (d) any Revolving Lender selected by the Borrower (with the prior consent of the Administrative Agent) to replace a Lender who is a Defaulting Lender at the time of such Revolving Lender’s appointment as an L/C Issuer (provided, that, no Lender shall be required to become an L/C Issuer pursuant to this clause (d) without such Lender’s consent), or any successor issuer thereof. The term “L/C Issuer” when used with respect to a Letter of Credit or the L/C Obligations relating to a Letter of Credit shall refer to the L/C Issuer that issued such Letter of Credit. Notwithstanding anything to the contrary in the Loan Documents and for the avoidance of doubt, an L/C Issuer shall not be a Disqualified Institution.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“LCT Election” has the meaning provided in Section 1.09.
“LCT Test Date” has the meaning provided in Section 1.09.
“Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement, and their respective successors and permitted assigns. Unless the context requires otherwise, “Lender” includes the Swingline Lender.
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“Lender Recipient Party” means each Recipient party to this Agreement.
“Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“Letter of Credit” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Report” means a certificate substantially in the form of Exhibit J or any other form reasonably approved by the Administrative Agent.
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) $100,000,000, and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.
“LIBOR” has the meaning specified in the definition of Eurodollar Rate.
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable mutual discretion of the Administrative Agent and the Borrower, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent reasonably determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent and the Borrower reasonably determine).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property and any Capital Lease having substantially the same economic effect as any of the foregoing); provided, that, in no event shall an operating lease in and of itself be deemed to be a Lien.
“Limited Condition Transaction” means (a) any Permitted Acquisition, the acquisition of Equity Interests in any Joint Venture or similar Investment permitted by Section 7.03, in each case, the consummation of which is not conditioned on the availability of, or on obtaining, any third-party financing, (b) the declaration or public announcement of any Restricted Payment permitted by Section 7.06; provided, that, such Restricted Payment is made within sixty (60) days of being declared, (c) any agreement to consummate any Disposition permitted by Section 7.05 and/or (d) the submission or delivery of an irrevocable notice of Prepayment of Subordinated Debt to the extent permitted by Section 7.14; provided, that, such Prepayment of Subordinated Debt is made within sixty (60) days of the date of such notice.
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“Liquidity” means the sum of (a) all cash and Cash Equivalents of the Loan Parties on such date that (i) do not appear (or would not be required to appear) as “restricted” on a consolidated balance sheet of the Borrower (for the avoidance of doubt, excluding any cash held in segregated accounts for the benefit of third parties) and (ii) are not subject to a Lien (other than Liens of the type described in Sections 7.01(a), (j), (m) and (r)) plus (b) Availability on such date.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, a Revolving Loan or a Swingline Loan.
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) each Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each Joinder Agreement, (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement); provided, that, for purposes of Section 11.01, “Loan Documents” shall mean this Agreement, each Guaranty and the Collateral Documents.
“Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar RateTerm SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit E or such other form as may be reasonably approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be reasonably approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”
“Material Adverse Effect” means a material adverse effect on (a) the property, business, operations, financial condition or liabilities of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Loan Parties to perform their collectivematerial obligations under the Loan Documents taken as a whole, or (c) the rights and remedies (taken as a whole) of the Administrative Agent, the L/C Issuers or the Lenders under the Loan Documents.
“Maturity Date” means November 30April 21, 20232027; provided, that, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Measurement Period” means, at any date of determination, the most recently completed four (4) Fiscal Quarters of the Borrower (or, for purposes of determining Pro Forma Compliance, the most recently completed four (4) Fiscal Quarters of the Borrower for which financial statements have been delivered pursuant to Section 6.01); in each case, with such period ending on the last day of a Fiscal Quarter.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 100% of the Outstanding Amount of all L/C Obligations, (c) with respect to any Letter of Credit and L/C Obligations to remain outstanding after the Facility Termination Date, an amount equal to 100% of the Outstanding Amount of all L/C Obligations,
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and (d) otherwise, an amount reasonably and mutually determined by the Administrative Agent, the L/C Issuer and the Borrower.
“MLPFS” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all, or substantially all, of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement).
“Xxxxx’x” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Subsidiary in respect of any Disposition, Equity Issuance, issuance of any Indebtedness or Involuntary Disposition, net of (a) direct costs and expenses incurred in connection therewith (including, without limitation, legal, accounting and investment banking and broker’s fees and sales commissions), (b) Taxes paid or payable as a result thereof (including, Tax distributions but after taking into account any available related and direct tax credits or deductions and any Tax sharing arrangements), (c) in the case of any Disposition or any Involuntary Disposition, the amount necessary to retire any Indebtedness (including, without limitation, any premium, penalty, interest, expenses and other amounts related thereto) secured by a Permitted Lien on the related property, (d) the pro rata portion of the aggregate cash or Cash Equivalents proceeds therefrom (calculated without regard to this clause (d)) attributable to minority Equity Interests and not available for distribution to or for the account of any Loan Party or any Subsidiary as a result thereof, (e) any reserve for adjustment in respect of (i) the sale or Disposition price of such asset or assets established in accordance with GAAP, and (ii) any liabilities associated with such asset or assets and retained by any Loan Party or any Subsidiary after such sale or other Disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations or purchase price adjustments associated with such transaction and (f) cash and Cash Equivalent escrows; it being understood that “Net Cash Proceeds” shall include (x) any direct and related cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration (within 365 days of receipt of such non-cash consideration) received by any Loan Party or any Subsidiary in any Disposition and (y) upon the unconditional release or reversal of any reserve described in clause (e) described above to or by the applicable Loan Party within 365 days, the amount of such reserve.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01, and (b) has been approved by the Required Lenders.
“Non-Core Assets” means property or assets acquired in connection with a Permitted Acquisition or similar Investment; provided, that, such assets (a) do not exceed 2535% of the total consideration paid for such Acquisition and (b) such assets are identified in writing to the Administrative Agent within ninetyone hundred eighty (90180) days of the consummation of such Acquisition.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
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“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iv).
“Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b)(iv).
“Note” has the meaning specified in Section 2.11.
“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit I or such other form as may be reasonably approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be reasonably approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“NPL” means the National Priorities List under CERCLA.
“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in the case of this clause (b), that are required to be paid or reimbursed by the Borrower pursuant to Section 11.04(a) and in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue under the Loan Documents after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided, that, Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Operating Lease” means any lease of (or other agreement conveying the right to use) any real or personal property by any Loan Party or any Subsidiary, as lessee, other than any Capital Lease.
“Ordinary Course Capital Lease” means a Capital Lease of computer systems, equipment or motor vehicles entered into by the Borrower or its Subsidiaries or Joint Ventures in the ordinary course of business in connection with performing its obligations under Facility Management Agreements or Facility Leases.
“Ordinary Course Equipment Lease” means an Operating Lease of computer systems, equipment or motor vehicles entered into by the Borrower or its Subsidiaries or Joint Ventures in the ordinary course of business in connection with performing its obligations under Facility Management Agreements or Facility Leases.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
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“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06(b)).
“Other Term Loans” has the meaning specified in Section 2.16.
“Outstanding Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and payments, prepayments or repayments of Term Loans, Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower or any of its Subsidiaries of Unreimbursed Amounts or the application of any Cash Collateral with respect thereto.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Permitted Acquisition” means an Acquisition by a Loan Party (the Person or division, line of business or other business unit of the Person to be acquired in such Acquisition shall be referred to herein as the “Target”), in each case, of a Target that is engaged in a type of business (or comprised of assets used in a type of business) permitted to be engaged in by the Borrower and its Subsidiaries pursuant to the terms of this Agreement, in each case so long as (subject to the provisions of Section 1.09):
(a)no Event of Default shall then exist or would immediately exist after giving effect thereto;
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(b)the Borrower shall provide a compliance certificate evidencing (which certificate, for the avoidance of doubt, may, at the sole option of the Borrower, be provided at the time of the applicable LCT Test Date in accordance with Section 1.09) that, after giving effect to the Acquisition on a Pro Forma Basis, the Loan Parties are in Pro Forma Compliance with the financial covenants set forth in Section 7.11;
(c)such Acquisition shall not be a “hostile” Acquisition and shall have been approved by the board of directors (or equivalent) of the Target;
(d)after giving effect to such Acquisition and any Credit Extensions, payments, prepayments and repayments and other transactions made in connection therewith, Availability shall be at least (i) from the Fourth Amendment Effective Date through the Trigger Date, $20,000,000 and (ii) after the Trigger Date, $15,000,000;
(e)with respect to any Acquisition with respect to which the aggregate consideration (including any Earnout with respect to such Acquisition, but only to the extent, and only in the amount that such Earnout would be shown as a liability on the Consolidated balance sheet of the Borrower as of the date of such Acquisition) paid by the Loan Parties exceeds $100,000,000, within twenty (20) Business Days (or such extended period as the Administrative Agent may agree in its sole reasonable discretion) after the consummation of such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement executed in connection with such Acquisition; and
(f)with respect to any Acquisition with respect to which the aggregate consideration (including any Earnout with respect to such Acquisition, but only to the extent, and only in the amount that such Earnout would be shown as a liability on the Consolidated balance sheet of the Borrower as of the date of such Acquisition) paid by the Loan Parties exceeds $100,000,000, not less than five (5) Business Days prior to such Acquisition (or such shorter period as the Administrative Agent may agree in its sole reasonable discretion), the Administrative Agent shall have received (i) an acquisition summary with respect to the Person and/or business or division to be acquired (to the extent applicable), such summary to include a reasonably detailed description thereof (including, in each case, to the extent readily available to the Borrower from the Target, financial information, operating results and financial statements of the Target for the most recent 12 month period), (ii) the Borrower’s calculation of Consolidated EBITDA of the Target on a Pro Forma Basis, and (iii) the material terms and material conditions, including material economic terms, of the proposed Acquisition (in each case, which requirements may be satisfied by providing the Administrative Agent with a copy of a draft of the acquisition agreement evidencing such Acquisition); and.
(g) with respect to all Acquisitions occurring on or after the Fourth Amendment Effective Date through the Trigger Date, the aggregate consideration (including the Borrower’s good faith estimate of any Earnout with respect to any such Acquisition (determined as of the date of the definitive agreement for such Acquisition) that would be required to be paid prior to the Maturity Date) paid by the Loan Parties and their Subsidiaries shall not exceed $20,000,000.
“Permitted Convertible Indebtedness” means Indebtedness of the Borrower that is convertible into common stock of the Borrower (or other securities or property following a merger event or other change of the common stock of the Borrower) and/or cash (to the extent the amount thereof is determined by reference to the price of such common stock) and any related Permitted Hedge Transaction.
“Permitted Hedge Transaction” means (a) any call or capped call option (or substantively equivalent derivative transaction) purchased in connection with the issuance of any Permitted Convertible
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Indebtedness (each a “Permitted Bond Hedge Transaction”) and (b) any call option, warrant or right to purchase (or substantively equivalent derivative transaction) sold by the Borrower substantially concurrently in connection with any purchase by the Borrower of a related Permitted Bond Hedge Transactions and the performance by the Borrower of its obligations thereunder (each a “Permitted Warrant Transaction”), in each case, relating to the Borrower’s common stock (or other securities or property following a merger event or other change of the common stock of the Borrower); provided that the purchase price for such Permitted Bond Hedge Transactions, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transactions, does not exceed the net proceeds received by the Borrower from the issuance of such Permitted Convertible Indebtedness in connection with such Permitted Bond Hedge Transactions.
“Permitted Liens” has the meaning set forth in Section 7.01.
“Permitted Transfers” means (a) Dispositions of inventory and assets in the ordinary course of business; (b) Dispositions of property to the Borrower or any Subsidiary, provided, that, such transfer is permitted by Section 7.03(b); (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) (i) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries (taken as a whole) or, (ii) if determined by management of the Borrower using reasonable management discretion, licenses and sublicenses of intellectual property on an exclusive basis so long as such exclusive licensing and sublicensing is limited to geographic areas, particular fields of use, customized products for customers or limited time periods and so long as, after giving effect to such license or sublicense (as applicable), the Borrower or its Subsidiaries retain sufficient rights to use the subject intellectual property as to enable them to continue to conduct their material business in the ordinary course (as determined by the Borrower in its reasonable business judgment); (e) the sale or Disposition of cash or Cash Equivalents for fair market value and conversion of Cash Equivalents into cash or other Cash Equivalents; (f) Dispositions of property, to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such Disposition are, within a reasonable time period thereafter (not greater than one-hundred and eighty (180) days), applied to the purchase price of such replacement propertyany swap or other Disposition of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and the Subsidiaries as a whole, as determined in good faith by the Borrower; (g) sales of materials or equipment no longer useful in the business of the Loan Parties or the applicable Subsidiaries; (h) sales of obsolete or worn-out and surplus equipment; and (i) abandonment and other Dispositions of Intellectual Property no longer material to the business of the applicable Loan Party or the applicable Subsidiary or that is otherwise obsolete, outdated or not useful in the business of the Loan Parties or the applicable Subsidiaries.; (j) Dispositions of assets not constituting Collateral in an aggregate amount not to exceed $10,000,000; (k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (l) the unwinding of any Swap Contract or Secured Cash Management Agreement; (m) sales of Non-Core Assets acquired in connection with Dispositions required in order to obtain HSR approval in connection with any Permitted Acquisition; and (n) any issuance of Equity Interests by the Borrower.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in Section 6.02.
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“Pledged Equity” has the meaning specified in the Security Agreement.
“Prepayment of Subordinated Debt” has the meaning specified in Section 7.14(a).
“Pro Forma Basis” and “Pro Forma Effect” means, for any Disposition of any Subsidiary or Joint Venture or of all or substantially all of the assets of any Subsidiary or Joint Venture or of a division or a line of business or division of the Borrower or any Subsidiary or Joint Venture, for any Acquisition, acquisition of Equity Interests in any Joint Venture or similar Investment or for any other transaction permitted hereunder, whether actual or proposed, for purposes of determining compliance with the financial covenants set forth in Section 7.11 or any financial condition, ratio or test applicable to any transaction under any of the Loan Documents, each such transaction or proposed transaction shall be deemed to have occurred on and as of the first day of the relevant Measurement Period (or, in the case of Consolidated Total Assets, as of the last day of such Measurement Period), and the following pro forma adjustments shall be made:
(a)in the case of an actual or proposed Disposition, all income statement items (whether positive or negative) attributable to the Subsidiary or Joint Venture, assets, line of business or division subject to such Disposition shall be excluded from the results and operations of the Borrower and its Subsidiaries for such Measurement Period;
(b)in the case of an actual or proposed Acquisition, acquisition of Equity Interests in any Joint Venture or similar Investment, income statement items (whether positive or negative) attributable to the property, line of business or division or the Person subject to such Acquisition, acquisition or similar Investment shall be included in the results and operations of the Borrower and its Subsidiaries for such Measurement Period;
(c)interest accrued during the relevant Measurement Period on, and the principal of, any Indebtedness paid, prepaid, repaid or to be paid, prepaid, repaid, retired or refinanced in such transaction shall be excluded from the results of the Borrower and its Subsidiaries for such Measurement Period; and
(d)any Indebtedness actually or proposed to be incurred or assumed in such transaction shall be deemed to have been incurred as of the first day of the applicable Measurement Period, and interest thereon shall be deemed to have accrued from such day on such Indebtedness at the applicable rates provided therefor and shall be included in the results of the Borrower and its Subsidiaries for such Measurement Period; provided, that, (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness), (y) interest on any obligations with respect to Capital Leases shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such obligation in accordance with GAAP and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or such Subsidiary may designate.
In the case of any calculation of the Consolidated Leverage Ratio, Consolidated Interest Coverage Ratio, Consolidated EBITDA, Consolidated Net Income or Consolidated Total Assets for any of the events described above that occur prior to the date on which the first financial statements after the Closing Date have been (or are required to be) delivered pursuant to Section 6.01(a) or (b), such calculations to be made
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on a “Pro Forma Basis” shall use the financial statements with respect to the Borrower and its Subsidiaries for the Fiscal Quarter ended on September 30, 2018.
“Pro Forma Compliance” means, with respect to any transaction, the calculation of the financial covenants set forth in Section 7.11 recomputed as of the end of the applicable Measurement Period giving Pro Forma Effect to such transaction and all other transactions which are contemplated or required to be given Pro Forma Effect hereunder that have occurred on or after the first day of the such Measurement Period.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Qualified Capital Stock” of any person means any Equity Interests of such Person that are not Disqualified Stock.
“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Reduction Amount” has the meaning set forth in Section 2.05(b).
“Register” has the meaning specified in Section 11.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.
“Rescindable Amount” has the meaning as defined in Section 2.12(b)(ii).
“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided, that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or L/C Issuer, as the case may be, in making such determination.
“Resignation Effective Date” has the meaning set forth in Section 9.06.
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“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller or any vice president of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now or hereafter outstanding; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries (other than with respect to Permitted Convertible Indebtedness), now or hereafter outstanding; (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of the Borrower or any of its Subsidiaries (other than with respect to any Permitted Hedge Transaction), now or hereafter outstanding; (d) any payment made in cash to holders of Permitted Convertible Indebtedness (other than payment of customary fees, costs and expenses associated therewith) in excess of (i) the original principal (or notional) amount thereof and interest thereon plus (ii) interest on such excess amount, unless and to the extent that a corresponding amount is received in cash (whether through a direct cash payment or a settlement in shares of stock that are immediately sold for cash) substantially contemporaneously from the other parties to a Permitted Bond Hedge Transaction relating to such Permitted Convertible Indebtedness and (e) any cash payment made in connection with the settlement of a Permitted Warrant Transaction solely to the extent the Borrower has the option of satisfying such payment obligation through the issuance of shares of common stock.
“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the caption “Revolving Commitment”, or opposite such caption in the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving Commitment of all of the Revolving Lenders on the FourthFifth Amendment Effective Date shall be ThreeFour Hundred Twenty Five Million Dollars ($325,000,000400,000,000).
“Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.
“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
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“Revolving Lender” means, at any time: (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time; or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.
“Revolving Loan” has the meaning specified in Section 2.01(b).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The XxXxxx-Xxxx Companies,S&P Global Inc., and any successor thereto.
“Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Loan Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and immediately thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Agreement” means any Cash Management Agreement between any Loan Party and any Cash Management Bank.
“Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract not prohibited under Article VI or Article VII between any Loan Party and any Hedge Bank.
“Secured Obligations” means all Obligations and all Additional Secured Obligations.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.
“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit G.
“Security Agreement” means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent by each of the Loan Parties.
“Securitization Transaction” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose Subsidiary or Affiliate of such Person.
“SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment” means, (a) with respect to Daily Simple SOFR, 0.10% (10 basis points); and (b) with respect to Term SOFR means 0.10% (10.0 basis points) for an Interest Period of one-month’s
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duration, 0.15% (15.0 basis points) for an Interest Period of three-month’s duration, 0.25% (25.0 basis points) for an Interest Period of six-months’ duration.
“Solvent” and “Solvency” mean, with respect to any Person, that, as of any date of determination, (a) the amount of the “fair saleable value” of the assets of such Person will, as of such date, exceed (i) the value of all “liabilities of such Person, including contingent and other liabilities”, as of such date, as such quoted terms are generally determined in accordance with applicable federal laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such Person on its existing debts (including contingent liabilities) as such debts become absolute and matured, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such Person will be able to pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this definition, (i) “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due and (ii) “Person” means any individual, sole proprietorship, general partnership, limited partnership, limited liability company, joint venture, trust, unincorporated association, corporation, governmental authority or other entity or group (which term will include a “group” as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).
“Specified Loan Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).
“Specified Transaction” means (a) any designation of operations or assets of the Borrower or any of its Subsidiaries as discontinued operations (as defined under GAAP), (b) any Investment that results in a Person becoming a Subsidiary, (c) any Permitted Acquisition, (d) any Disposition that results in a Subsidiary ceasing to be a Subsidiary of the Borrower or any Disposition of a business unit, line of business, book of business or division of the Borrower or any of its Subsidiaries, in each case whether by merger, consolidation, amalgamation or otherwise, (e) any Investment constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Equity Interests of, another Person or any Disposition of a business unit, line of business or division of the Borrower or a Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise or (f) any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes), Restricted Payment, Incremental Facility, in each case, that by the terms of this Agreement requires a financial ratio or test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
“Subordinated Debt” means, for any Person, any Indebtedness of such Person which is fully subordinated to all Secured Obligations, by written agreements and documents in form and substance reasonably satisfactory to the Administrative Agent and which is governed by terms and provisions, including, without limitation, maturities, covenants, defaults, rates and fees, reasonably acceptable to the Administrative Agent.
“Subordinated Debt Documents” means any agreement or document evidencing or relating to any Subordinated Debt, in each case, as the same may be amended, restated, modified or supplemented and in effect from time to time as not prohibited by the terms hereof.
“Subsequent Transaction” means (a) any Permitted Acquisition or the making of other acquisitions or Investments not prohibited by this Agreement, (b) any Disposition not prohibited by this Agreement, (c) any Prepayment of Subordinated Debt, (d) any Restricted Payment not prohibited by this Agreement or (e) any other event, action or transaction that by the terms of the Loan Documents requires pro forma
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compliance with a financial covenant, condition, ratio or test or Availability under this Agreement or the other Loan Documents or requires such financial covenant, condition, ratio or test or Availability to be calculated on a Pro Forma Basis.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Successor Rate” has the meaning specified in Section 3.03(b).
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts or Permitted Hedge Transaction, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts or Permitted Hedge Transactions: (a) for any date on or after the date such Swap Contracts or Permitted Hedge Transactions have been closed out and termination value(s) determined in accordance therewith, such termination value(s); and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts or Permitted Hedge Transactions, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts or Permitted Hedge Transactions (which may include a Lender or any Affiliate of a Lender).
“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.
“Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
“Swingline Loan” has the meaning specified in Section 2.04(a).
“Swingline Sublimit” means an amount equal to the lesser of (a) $20,000,000, and (b) the Revolving Facility. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.
“Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to
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function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Temporary Revolving Commitments” means the additional Revolving Commitments provided by the Revolving Lenders pursuant to the Third Amendment to this Agreement.
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).
“Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption “Term Commitment”, or opposite such caption in the Assignment and Assumption or other documents pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Outstanding Amount of the Term CommitmentLoan of all of the Term Lenders on the Closing Date shall be Two-Hundred Twenty FiveFifth Amendment Effective Date, after giving effect to the voluntary prepayment set forth in the Fifth Amendment, is Two Hundred Million Dollars ($225,000,000200,000,000).
“Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term Commitments at such time, and (b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.
“Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at such time, and (b) at any time after the Closing Date, any Lender that holds Term Loans at such time.
“Term Loan” means an advance made by any Term Lender under the Term Facility.
“Third Amendment Effective DateTerm SOFR” means May 6, 2020.:
(a)for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
(b)for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;
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provided that if the Term SOFR determined in accordance with either of the foregoing provisions in clauses (a) or (b) of this definition would otherwise be less than 0%, the Term SOFR shall be deemed 0% for purposes of this Agreement.
“Term SOFR Loan” means a Revolving Loan or a Term Loan that bears interest based clause (a) of the definition of Term SOFR.
“Term SOFR Replacement Date” has the meaning set forth in Section 3.03(b).
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Threshold Amount” means $25,000,000.
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and Outstanding Amount of all Term Loans of such Lender at such time.
“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations.
“Transactions” means, collectively, (a) the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents and the making of the initial Credit Extensions hereunder, (b) the repayment of all amounts due or outstanding under, or in respect of, the Borrower in existence immediately prior to the Closing Date, and the termination of the credit agreements of the Borrower in existence immediately prior to the Closing Date (other than Indebtedness permitted under Section 7.02), (c) the consummation of the Closing Date Acquisition, and (d) the payment of fees, costs and expenses in connection with the foregoing.
“Trigger Date” means, (a) for purposes of Section 7.01 and 7.02, the date a Compliance Certificate for the Fiscal Quarter ending March 31, 2022 is delivered by the Borrower to the Administrative Agent certifying compliance with the financial covenants set forth in Section 7.11 for such fiscal quarter and (ii) for purposes of the definition of Permitted Acquisition, Section 7.03, 7.06 and 7.14, the date a Compliance Certificate for the Fiscal Quarter ending June 30, 2022 is delivered by the Borrower to the Administrative Agent certifying compliance with the financial covenants set forth in Section 7.11 for such fiscal quarter.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar RateTerm SOFR Loan.
“UCC” means the Uniform Commercial Code as in effect in the State of Illinois; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Illinois, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
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“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Cash” means, any cash and Cash Equivalents of the Loan Parties (i) on which no Person has a Lien (other than Liens permitted under Sections 7.01(a), (c) and (j)) maintained in domestic deposit accounts and cash in transit to domestic deposit accounts that is in excess of $20,000,000 and (ii) that do not appear (or would not be required to appear) as “restricted” on a consolidated balance sheet of the Borrower (for the avoidance of doubt, excluding any cash held in segregated accounts for the benefit of third parties) .
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(3).
“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of such contingency.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (and/or portion thereof) obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly-Owned Domestic Subsidiary” means each Wholly-Owned Subsidiary that is a Domestic Subsidiary.
“Wholly-Owned Subsidiary” means, as to any Person, a Subsidiary all of the Equity Interests of which (except directors’ qualifying Equity Interests) are at the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person. Unless otherwise specified, references herein to a “Wholly-Owned Subsidiary” or “Wholly-Owned Subsidiaries” shall refer to a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries of the Borrower.
“Withholding Agent” means the Borrower and the Administrative Agent.
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“Write-Down and Conversion Powers” (a) means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise:
(i)any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document);
(ii)any reference herein to any Person shall be construed to include such Person’s successors and assigns;
(iii)the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof;
(iv)all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear;
(v)any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time; and
(vi)the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(b)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from, and including,”; the words “to” and “until” each mean “to, but excluding,”; and the word “through” means “to, and including,”.
(c)Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d)Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
(e)All references to “knowledge” of any Loan Party or a Restricted Subsidiary of a Loan Party means the actual knowledge of a Responsible Officer thereof.
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(a)Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded.