FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2022 AMONG ARCBEST CORPORATION AND CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, AS BORROWERS, THE LENDERS FROM TIME TO TIME PARTY HERETO, U.S. BANK NATIONAL...
EXECUTION VERSION
Deal CUSIP 00000XXX0
Revolving Loan CUSIP 00000XXX0
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF OCTOBER 7, 2022
AMONG
ARCBEST CORPORATION AND CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO,
AS BORROWERS,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
U.S. BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
TRUIST BANK, TORONTO-DOMINION BANK, NEW YORK BRANCH AND REGIONS BANK,
AS CO-SYNDICATION AGENTS
AND
U.S. BANK NATIONAL ASSOCIATION,
AS SOLE LEAD ARRANGER AND SOLE BOOK RUNNER
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SCHEDULES
PRICING SCHEDULE
SCHEDULE 1 – Commitments
SCHEDULE 5.8 – Material Domestic Subsidiaries
SCHEDULE 5.14 – Properties
SCHEDULE 6.11 – Indebtedness
SCHEDULE 6.14 – Investments
SCHEDULE 6.16 – Liens
EXHIBITS
EXHIBIT A – Reserved
EXHIBIT B – Form of Compliance Certificate
EXHIBIT C – Form of Assignment and Assumption Agreement
EXHIBIT D-1 – Form of Borrowing Notice
EXHIBIT D-2 – Form of Payment Notice
EXHIBIT E – Form of Note
EXHIBIT F – Form of Increasing Lender Supplement
EXHIBIT G – Form of Augmenting Lender Supplement
EXHIBIT H – Form of Notice of Obligations
EXHIBIT I-1 – Form of Borrowing Subsidiary Agreement
EXHIBIT I-2 – Form of Borrowing Subsidiary Termination
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DB1/ 132119812.14
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amended and Restated Credit Agreement (this “Agreement”), dated as of October 7, 2022, is among ArcBest Corporation (formerly known as Arkansas Best Corporation) and each of its direct or indirect Subsidiaries that joins this Agreement from time to time as a Borrowing Subsidiary, the Lenders and U.S. Bank National Association, a national banking association, as a LC Issuer, Swing Line Lender and as Administrative Agent. The parties hereto agree as follows:
PRELIMINARY STATEMENT
WHEREAS, the Borrowers, certain of the Lenders and the Administrative Agent are parties to that certain Third Amended and Restated Credit Agreement, dated as of September 27, 2019 (as amended, restated, supplemented or otherwise modified prior to the effectiveness hereof, the “Existing Credit Agreement”); and
WHEREAS, the Borrowers, the Lenders and the Administrative Agent have agreed to amend and restate the Existing Credit Agreement in its entirety.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto acknowledge that the Existing Credit Agreement is hereby amended and restated as follows:
As used in this Agreement:
“Acquisition” means any transaction, or any series of related transactions, consummated after the date of this Agreement, by which any Borrower or any Subsidiary (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
“Active Subsidiary” means each Subsidiary which, as of the most recent fiscal quarter of the Parent, for the period of four (4) consecutive fiscal quarters then ended for which financial statements have been delivered pursuant to Section 6.1, contributed greater than 2% of the Parent’s Consolidated EBITDA for such period or greater than 2% of the Parent’s total assets as of the end of such period.
“Additional Commitment” is defined in Section 2.24.
DB1/ 132119812.14
“Adjusted Leverage Ratio” is defined in Section 6.23(b).
“Adjusted Term SOFR Screen Rate” means, with respect to any Term SOFR Advance, Term SOFR Loan or Swing Line Loan accruing interest at the Term SOFR Swingline Rate, in each case for any Interest Period, an interest rate per annum equal to the greater of (a) zero and (b) the sum of (i) the Term SOFR Screen Rate for such Interest Period, plus (ii) the SOFR Adjustment.
“Administrative Agent” means U.S. Bank in its capacity as contractual representative of the Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article X.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Advance” means a borrowing hereunder of Loans of the same Type, made, converted or continued on the same date and, in the case of Term SOFR Loans, as to which a single Interest Period is in effect. The term “Advance” shall include Swing Line Loans unless otherwise expressly provided.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” is defined in Section 2.20.
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person, including, without limitation, such Person’s Subsidiaries. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
“Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as reduced from time to time pursuant to the terms hereof, as the same may be increased from time to time pursuant to Section 2.24 or reduced from time to time pursuant to Section 2.7. As of the Effective Date, the Aggregate Commitment is $250,000,000.
“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.
“Agreement” means this Fourth Amended and Restated Credit Agreement, as it may be amended or modified and in effect from time to time.
“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the highest of (a) 0.0%, (b) the Prime Rate for such day, (c) the sum of the Federal Funds Effective Rate for such day plus 0.50% per annum and (d) the Adjusted Term SOFR Screen Rate (without giving effect to the Applicable Margin) for a one-month Interest Period on such day (or if such day is not a Business Day or if the Term SOFR Screen Rate for such Business Day is not published due to a
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holiday or other circumstance that the Administrative Agent deems in its sole discretion to be temporary, the immediately preceding Business Day) for Dollars plus 1.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, or the Adjusted Term SOFR Screen Rate shall be effective from the effective date of such change. If the Alternate Base Rate is being used when Term SOFR Advances are unavailable pursuant to Section 2.1 or 3.3, then the Alternate Base Rate shall be the highest of clauses (a), (b) and (c) above, without reference to clause (d) above.
“Anti-Corruption Laws” means all laws of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Applicable Fee Rate” means, at any time, the percentage rate per annum at which commitment fees are accruing on the Available Aggregate Commitment at such time as set forth in the Pricing Schedule.
“Applicable Margin” means, with respect to Advances of any Type at any time, the percentage rate per annum which is applicable at such time with respect to Advances of such Type as set forth in the Pricing Schedule.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means U.S. Bank, and its successors, in its capacity as Sole Lead Arranger and Sole Book Runner.
“Article” means an article of this Agreement unless another document is specifically referenced.
“Augmenting Lender” is defined in Section 2.24.
“Authorized Officer” means any of the chief financial officer, treasurer, assistant treasurer or corporate secretary of the Parent, acting singly.
“Available Aggregate Commitment” means, at any time, the Aggregate Commitment then in effect minus the Aggregate Outstanding Credit Exposure at such time.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“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.
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“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means, for any day, a rate per annum equal to (a) the Alternate Base Rate for such day plus (b) the Applicable Margin for such day, in each case changing when and as the Alternate Base Rate or the Applicable Margin changes.
“Base Rate Advance” means an Advance which, except as otherwise provided in Section 2.11, bears interest at the Base Rate.
“Base Rate Loan” means a Loan which, except as otherwise provided in Section 2.11, bears interest at the Base Rate.
“Benchmark” means, initially, the Term SOFR Screen Rate; provided that if a replacement of the Benchmark has occurred pursuant to Section 3.3(b), then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to Section 3.3(b).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
| (1) | Daily Simple SOFR; or |
| (2) | the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment. |
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement pursuant to clause (2) thereof for any applicable Interest Period and Available Tenor for any setting of such Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the
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Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Adjusted Term SOFR Screen Rate”, the definition of “Advance”, the definition of “Term SOFR Advance,” the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Term SOFR Loan”, the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
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For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark in accordance with Section 3.3(b), and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark in accordance with Section 3.3(b).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
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“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 and subject to 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.
“Borrowers” means, collectively, the Parent and each Material Domestic Subsidiary of the Parent that becomes a Borrowing Subsidiary hereunder pursuant to Section 2.23.
“Borrowing Date” means a date on which an Advance is made or a Facility LC is issued hereunder.
“Borrowing Notice” is defined in Section 2.8.
“Borrowing Subsidiary” means, at any time, each Material Domestic Subsidiary designated as a Borrowing Subsidiary by the Parent pursuant to Section 2.23, in each case until such Person has ceased to be a Borrowing Subsidiary pursuant to Section 2.23.
“Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially in the form of Exhibit I-1.
“Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination substantially in the form of Exhibit I-2.
“Business Day” means a day (other than a Saturday or Sunday) on which banks generally are open in New York City, New York for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system; provided that, when used in connection with SOFR or the Term SOFR Screen Rate, the term “Business Day” excludes any day on which the Securities Industry and Financial Markets Association (SIFMA) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Capital Expenditures” means, without duplication, any expenditures for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of the Parent and its Subsidiaries prepared in accordance with GAAP.
“Cash Collateralize” means to deposit in the Facility LC Collateral Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the LC Issuers or Lenders, as collateral for LC Obligations or obligations of Lenders to fund participations in respect of LC Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable LC Issuer shall agree in their reasonable discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and each applicable LC Issuer. “Cash Collateral” shall have a meaning
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correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalent Investments” means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of business, (iv) variable denomination floating rate demand notes issued by companies with a parent credit rating of at least A- by S&P or the equivalent rating by Moody’s, (v) certificates of deposit, bankers’ acceptances, overnight Federal funds transactions and time deposits (A) issued or sold by or on deposit with (1) Lenders, their Affiliates or their respective holding companies or (2) commercial banks (whether domestic or foreign) having assets in excess of $500,000,000 or (B) which are FDIC insured (up to the amount covered by such FDIC insurance); provided in each case that the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest, (vi) shares of money market mutual funds that are rated at least “AAAm” or “AAAG” by S&P or “P-1” or better by Moody’s, and (vii) other Investments consented to by the Administrative Agent; provided that, for purposes of determining compliance with Section 6.14 of this Agreement, any Investment that, when initially made or acquired, satisfies the requirements of this definition may continue to be held notwithstanding that such Investment, if made or acquired thereafter, would not comply with such requirements.
“Cash Management Services” means any banking services that are provided to any Borrower or any Subsidiary by the Administrative Agent, any LC Issuer or any of their Affiliates (other than pursuant to this Agreement) or any other Lender or any of its Affiliates, including without limitation: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) stored value cards, (f) freight payable transactions, (g) automated clearing house or wire transfer services, or (h) treasury management, including controlled disbursement, consolidated account, lockbox, overdraft, return items, sweep and interstate depository network services.
“Change in Control” means (i) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of 40% or more of the outstanding shares of voting stock of the Parent or (ii) within any twelve-month period, occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were neither (x) nominated by the board of directors of the Parent nor (y) appointed or approved by directors so nominated.
“Change in Law” is defined in Section 3.1.
“Co-Syndication Agents” means each of Truist Bank, Toronto-Dominion Bank, New York Branch and Regions Bank.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Collateral Shortfall Amount” is defined in Section 8.1(a).
“Commitment” means, as to any Lender, the obligation of such Lender to make Loans to, and participate in Facility LCs issued upon the application of and Swing Line Loans made to, the
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Borrowers, in an amount not exceeding the amount set forth in Schedule 1, as it may be modified as a result of any assignment that has become effective pursuant to Section 12.3(c) or as otherwise modified from time to time pursuant to the terms hereof.
“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.
“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 Adjusted Funded Indebtedness” means, at any time, the sum of (a) Indebtedness of the Parent and its Subsidiaries (other than the Designated Subsidiaries) of the types described in clauses (i), (ii), (iv), (vi), (vii) and (x) of the definition of Indebtedness, calculated on a consolidated basis as of such time (provided¸ that solely the issued, non-cash collateralized obligations with respect to standby and commercial letters of credit shall be included in such calculation), plus (b) the product of Consolidated Rentals for the immediately preceding twelve month period, determined as of the end of such period, multiplied by six (6), minus (c) the amount of Unrestricted Cash at such time in excess of $25,000,000 in the aggregate.
“Consolidated EBITDA” means Consolidated Net Income, plus, to the extent deducted from revenues in determining Consolidated Net Income and without duplication, (i) Consolidated Interest Expense, (ii) expense for income taxes, (iii) depreciation, (iv) amortization (including, without limitation, amortization of net actuarial losses as reflected in the Parent’s financial statements from time to time), (v) unusual or non-recurring non-cash expenses, charges or losses occurred other than in the ordinary course of business, (vi) non-cash expenses related to stock based compensation, and (vii) non-cash impairment write-downs or charges related to goodwill and other intangible assets, minus, to the extent included in Consolidated Net Income, (1) unusual or non-recurring income or gains realized other than in the ordinary course of business, (2) income tax credits and refunds (to the extent not netted from tax expense), and (3) any cash payments made during such period in respect of items described in clauses (v), (vi) or (vii) above subsequent to the fiscal quarter in which the relevant non-cash expenses, charges or losses were incurred, all calculated for the Parent and its Subsidiaries (other than the Designated Subsidiaries) on a consolidated basis. For the purposes of calculating Consolidated EBITDA for any period of four (4) consecutive fiscal quarters (each, a “Reference Period”), (a) if at any time during such Reference Period any Borrower or any Subsidiary (other than the Designated Subsidiaries) shall have made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, and (b) if during such Reference Period any Borrower or any Subsidiary (other than the Designated Subsidiaries) shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto on a basis consistent with the calculation of Consolidated EBITDA hereunder as if such Material Acquisition occurred on the first day of such Reference Period; provided that such pro forma adjustments shall not be made in calculating the Interest Coverage Ratio. Notwithstanding the foregoing, any impact related to the change in fair value of the contingent consideration associated with the earnout payable with
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respect to the Acquisition of MoLo Solutions, LLC shall not be included in any determination of Consolidated EBITDA.
“Consolidated EBITDAR” means the sum of (a) Consolidated EBITDA plus (b) Consolidated Rentals for the applicable Reference Period plus (c) fees and expenses arising directly in respect of any Permitted Acquisition (including, without limitation, fees and expenses directly associated with the financing of such Acquisition) plus (d) fees and expenses arising directly from failed Acquisitions and divestitures, net of any gains from such failed Acquisitions and divestitures plus (e) transactional fees and expenses directly associated with the incurrence of Indebtedness (including in connection with this Agreement) or the issuance of equity interests in Parent (provided, that such transactional fees and expenses during any fiscal year shall not exceed, in the aggregate, $2,000,000; provided, further, that the limitation in the foregoing proviso shall not apply to transactional fees and expenses incurred in connection with this Agreement); in each case of clauses (c), (d) and (e), reasonably acceptable to the Administrative Agent. For absence of doubt, any impact related to the change in fair value of the contingent consideration associated with the earnout payable with respect to the Acquisition of MoLo Solutions, LLC shall not be included in any determination of Consolidated EBITDAR.
“Consolidated Interest Expense” means, with reference to any period, the interest expense of the Parent and its Subsidiaries (other than the Designated Subsidiaries) calculated on a consolidated basis for such period.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the Parent and its Subsidiaries (other than the Designated Subsidiaries, except to the extent of the amount of dividends, distributions or other payments constituting net income paid in cash by the Designated Subsidiaries to a Loan Party during such period) calculated on a consolidated basis for such period.
“Consolidated Rentals” means, with reference to any period, the Rentals of the Parent and its Subsidiaries (other than the Designated Subsidiaries) calculated on a consolidated basis for such period.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership.
“Conversion/Continuation Notice” is defined in Section 2.6.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
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“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning specified in Section 9.17.
“Credit Extension” means the making of an Advance or the issuance of a Facility LC hereunder.
“Daily Simple SOFR” means for any day, an interest rate per annum equal to SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, 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 an event which but for the lapse of time or the giving of notice, or both, would constitute an Event of Default.
“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 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or waived, or (ii) pay to the Administrative Agent, any LC Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Facility LCs or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrowers, the Administrative Agent, the LC Issuers or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Xxxxxx shall cease to be a
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Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), 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 (other than an Undisclosed Administration), including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrowers, each LC Issuer, the Swing Line Lender and each Lender.
“Designated Subsidiaries” means those certain Subsidiaries of the Parent designated by the Parent and agreed to by the Administrative Agent and the Required Lenders as of the Effective Date; provided, that after the Effective Date, the Parent may remove such designation in respect of a Subsidiary if the Parent or applicable Subsidiary complies with the requirements set forth in Section 6.24 if such re-designated Subsidiary then constitutes a “Material Domestic Subsidiary”.
“Designated Subsidiaries’ Businesses” means the lines-of-business operated (or proposed to be operated) by the Designated Subsidiaries as of the Effective Date (as such lines-of-business (both current and proposed) were described to the Administrative Agent and the Lenders on or prior to the Effective Date), any reasonable extension of such lines-of-business, and any business related, ancillary or complementary to any such business.
“Designated Subsidiaries’ Net Debt” means the excess, if any, of (x) the aggregate principal amount of Indebtedness incurred by Designated Subsidiaries that is used to acquire Property used in their respective lines-of-business over (y) the aggregate amount of final and committed payment amounts (evidenced by written agreements customarily used by the Loan Parties and their Subsidiaries in the ordinary course of business) owing by unaffiliated, third-party customers of the Loan Parties and their Subsidiaries, including the Designated Subsidiaries, to lease, rent, or acquire, over time, such Property.
“Determination Date” has the meaning provided in the definition of Term SOFR Screen Rate.
“Disqualified Lenders” means, collectively or individually as the context requires, (a) those Persons identified in writing by the Parent to the Administrative Agent prior to the Effective Date, and (b) other Persons approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed), in each case identified in writing by the Parent to the Administrative Agent from time to time on or after the Effective Date; provided, that during the
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continuance of any Event of Default under Sections 7.2, 7.6 or 7.7, no such Person shall constitute a Disqualified Lender for purposes hereof.
“Dollar” and “$” means the lawful currency of the United States of America.
“Domestic Subsidiary” means a Subsidiary of a Loan Party incorporated or organized under the laws of the United States of America, any state thereof or the District of Columbia.
“E-SIGN” means the Federal Electronic Signatures in Global and National Commerce Act, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time.
“Early Opt-in Election” means, if the then-current Benchmark is the Term SOFR Screen Rate, the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Term SOFR Screen Rate to the Benchmark Replacement, and a notification by the Administrative Agent to each of the other parties hereto of such election and the proposed Benchmark Replacement.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.1 are satisfied or waived.
“Eligible Assignee” means (i) a Lender; (ii) an Approved Fund; (iii) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $3,000,000,000, calculated in accordance with the accounting principles prescribed by the regulatory authority applicable to such bank in its jurisdiction of organization; (iv) a commercial bank organized under the laws of any other country that is a member of the OECD, or a political subdivision of any such country, and having total assets in excess of $3,000,000,000, calculated in accordance with the accounting principles prescribed by the regulatory authority applicable to such bank in its jurisdiction of organization, so long as such bank is acting through a branch or agency located in the country in which it is organized or another country that is described in this clause (iv); or (v) the central bank of any country that is a member of the OECD; provided, that no (a) Disqualified Lender, (b) Defaulting Lender or Affiliate thereof, or any Person who, upon becoming a Lender, would constitute a Defaulting Lender or an Affiliate thereof, or (c) natural Person (or
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holding company, investment vehicle or trust for or owned and operated for the primary benefit of a natural Person) shall constitute an Eligible Assignee.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, injunctions, permits, concessions, grants, franchises, licenses and other governmental restrictions relating to (i) the protection of the environment, (ii) personal injury or property damage relating to the release or discharge of Hazardous Materials, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure with respect to any Plan to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of any Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by any Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice, concerning the imposition upon any Borrower or any of its ERISA Affiliates of withdrawal liability under Section 4201 of ERISA or a determination that a Multiemployer Plan is, or is expected to be during the period from the Effective Date until the Facility Termination Date, insolvent within the meaning of Title IV of ERISA.
“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.
“Event of Default” is defined in Article VII.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation with respect to a Lender-Provided Swap if, and only to the extent that, all or a portion of the
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guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof), including by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.
“Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case (a) imposed by the respective jurisdiction (or political subdivision thereof) under the laws of which such Lender or the Administrative Agent is incorporated or is organized or in which its principal executive office is located or, in the case of a Lender, in which such Lender’s applicable Lending Installation is located, or (b) that are Other Connection Taxes, (ii) in the case of a Lender, any U.S. federal withholding tax that is imposed on amounts payable to such Lender with respect to an applicable interest in a Loan, Commitment or Reimbursement Obligation pursuant to a law in effect on the date on which (a) such Lender acquires such interest in the Loan, Commitment or Reimbursement Obligation or (b) such Lender changes its Lending Installation, except in each case to the extent that, pursuant to Section 3.5(a), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Installation, (iii) Taxes attributable to the failure by any Lender, applicable Lending Installation or Administrative Agent to comply with Section 3.5(f), and (iv) any U.S. federal withholding Taxes imposed under FATCA. For purposes of this definition, any reference to the term “Lender” includes any LC Issuer.
“Exhibit” refers to an exhibit to this Agreement, unless another document is specifically referenced.
“Existing Credit Agreement” is defined in the preamble hereto.
“Facility LC” is defined in Section 2.19(a)
“Facility LC Application” is defined in Section 2.19(c).
“Facility LC Collateral Account” is defined in Section 2.19(l).
“Facility Termination Date” means October 7, 2027 or any earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.
“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
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convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
“Federal Funds Effective Rate” means, for any day, the greater of (a) zero percent and (b) 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 or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Central time) on such day on such transactions received by the Administrative Agent from three (3) Federal funds brokers of recognized standing selected by the Administrative Agent in its reasonable discretion.
“Fee Letter” is defined in Section 10.13.
“Financial Contract” of a Person means (i) any exchange-traded or over-the-counter futures, forward, swap or option contract or other financial instrument with similar characteristics, including agreements evidencing Swap Obligations, or (ii) any Rate Management Transaction.
“Financing Lease” of a Person means any lease of Property by such Person as lessee which would be recorded as a financing lease on a balance sheet of such Person prepared in accordance with GAAP.
“Financing Lease Obligations” of a Person means the principal amount of the obligations of such Person under Financing Leases which would be required to be accounted for as a financing lease on a balance sheet of such Person prepared in accordance with GAAP.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Screen Rate. The Floor as of the Effective Date equals 0%.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any LC Issuer, such Defaulting Lender’s ratable share of the LC Obligations with respect to Facility LCs issued by such LC Issuer other than LC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s ratable share of outstanding Swing Line Loans made by the Swing Line Lender other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Fund” means any Person (other than a natural person) that is (or will be as of the date of any assignment thereto pursuant to Section 12.3 hereof) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
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“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, applied in a manner consistent with that used in preparing the financial statements referred to in Section 5.4, subject at all times to Section 9.8.
“Governmental Authority” means the government of the United States of America 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) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Guarantor” means each Material Domestic Subsidiary of the Parent that is a party to the Guaranty, either on the date hereof or pursuant to the terms of Section 2.23 or Section 6.24(a), and each such Person’s successors and assigns.
“Guaranty” means that certain Xxxxxxx and Restated Guaranty, dated as of October 7, 2022, executed by each of the Guarantors in favor of the Administrative Agent, for the ratable benefit of the Lenders, as amended, restated, supplemented or otherwise modified, renewed or replaced from time to time subject to the terms hereof and thereof.
“Hazardous Materials” means any explosive or radioactive substances or wastes, any hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and any other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Highest Lawful Rate” means, on any day, the maximum non-usurious rate of interest permitted for that day by applicable federal or state law stated as a rate per annum.
“IDB Transactions” means, collectively, the issuance of industrial development bonds of the City of Fort Xxxxx, Arkansas to Parent or a Subsidiary, the corresponding payment of lease obligations by Parent or a Subsidiary and the other transactions contemplated in connection with the construction of new corporate headquarters of the Parent and its Subsidiaries, all as disclosed to the Administrative Agent prior to the Effective Date.
“Increasing Lender” is defined in Section 2.24.
“Incremental Term Loan” is defined in Section 2.24.
“Incremental Term Loan Amendment” is defined in Section 2.24.
“Indebtedness” of a Person means, without duplication, such Person’s (i) obligations for borrowed money (including the Obligations under this Agreement and the other Loan Documents), (ii) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms
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customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, other than endorsements for collection or deposit and Indebtedness resulting from a bank or other financial institution honoring checks, drafts or similar instruments inadvertently drawn against insufficient funds, in each case in the ordinary course of business, (v) obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property, (vi) Financing Lease Obligations, (vii) obligations of such Person as an account party with respect to standby and commercial Facility LCs, (viii) Contingent Obligations of such Person in respect of Indebtedness under any other clause of this definition, (ix) Net Mark-to-Market Exposure under Rate Management Transactions and other Financial Contracts, (x) Receivables Transaction Attributed Indebtedness, and (xi) any other obligation for borrowed money or other financial accommodation that in accordance with GAAP would be shown as debt on the consolidated balance sheet of such Person; provided, however, that any earnout amount anticipated in respect of the Acquisition of MoLo Solutions, LLC shall not be included in Indebtedness unless, until and to the extent earned and payable in accordance with terms of the applicable acquisition agreement; and provided further that (x) no compensation payments made to, or compensation accrued but unpaid as of the measurement date relating to, any employee of any Person acquired through any Permitted Acquisition shall be deemed Indebtedness for so long as (A) the requirement to pay such compensation arises under the agreements, documents and instruments evidencing the applicable Acquisition and (B) such compensation is not evidenced by a promissory note, instrument or other similar agreement; and (y) surety bonds shall not be deemed Indebtedness.
“Indemnified Taxes” means 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, other than Excluded Taxes and Other Taxes.
“Interest Coverage Ratio” is defined in Section 6.23(a).
“Interest Differential” is defined in Section 3.4.
“Interest Period” means, with respect to a Term SOFR Advance, a period of one, three or six months (in each case, subject to the availability thereof) commencing on a Business Day selected by a Borrower pursuant to this Agreement and ending on the day that corresponds numerically to such date one, three or six months thereafter; provided that:
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“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person in or to another Person, including the purchase or acquisition of stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities (including warrants or options to purchase securities) of such other Person or any certificates of deposit, structured notes, derivative financial instruments and other similar instruments or contracts of such other Person; provided that, for purposes of determining compliance with any monetary basket set forth in Section 6.14, the amount of any Investment shall be the amount actually invested in or paid for such Investment, less any cash returns, cash dividends or other cash distributions of any kind received by the applicable Loan Party or Subsidiary in respect of such Investment; provided, further, that a series of directly related and concurrent Investments shall constitute a single Investment for purposes hereof. By way of example only, if a Loan Party invests $10,000,000 in a Subsidiary that is not a Loan Party, and the non-Loan Party Subsidiary concurrently invests such $10,000,000 in a joint venture formed with an unaffiliated third party, such series of Investments shall constitute a single $10,000,000 Investment for purposes of the Loan Documents instead of two separate $10,000,000 Investments.
“LC Fee” is defined in Section 2.19(e).
“LC Issuers” means, individually or collectively as the context requires, (a) U.S. Bank (or any subsidiary or affiliate of U.S. Bank designated by U.S. Bank) and (b) such other Lenders or affiliates of a Lender as a Borrower may designate as LC Issuers from time to time with the consent of the Administrative Agent and such designated Lender or affiliate of a Lender, in each case in its capacity as issuer of Facility LCs hereunder.
“LC Obligations” means, at any time, the sum, without duplication, of (i) the aggregate undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount at such time of all Reimbursement Obligations.
“LC Payment Date” is defined in Section 2.19(f).
“Lender-Provided Swap” means a swap or other Rate Management Transaction which is provided to a Borrower or any Subsidiary by the Administrative Agent, an LC Issuer, any other Lender or any Affiliate thereof (in each case, at the time such swap is entered into).
“Lenders” means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns. Unless otherwise specified, the term “Lenders” includes U.S. Bank in its capacity as Swing Line Lender.
“Lending Installation” means, with respect to a Lender, a LC Issuer or the Administrative Agent, the office, branch, subsidiary or affiliate of such Lender, such LC Issuer or the Administrative Agent listed on the signature pages hereof (in the case of the Administrative Agent)
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or on its Administrative Questionnaire (in the case of a Lender) or otherwise selected by such Lender, such LC Issuer or the Administrative Agent pursuant to Section 2.17.
“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, security or similar collateral deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Financing Lease or other title retention agreement).
“List of Closing Documents” means the List of Closing Documents, dated as of the date hereof, agreed to among the Borrowers and the Administrative Agent, identifying the agreements, documents and instruments required to be delivered on the Effective Date or within an agreed period of time thereafter, as applicable.
“Loan” means a Revolving Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, the Guaranty, any Note or Notes, the Fee Letter, each Borrowing Subsidiary Agreement and all related agreements delivered pursuant to Sections 2.23 or 4.3, each Increasing Lender Supplement and Augmenting Lender Supplement and all related agreements delivered pursuant to Section 2.24, each Assignment and Assumption Agreement and any document entered into between any Loan Party and the Administrative Agent designated as a “Loan Document” therein, and any amendment, restatement, supplement or other modification of any of the foregoing, now or in the future, executed by any Borrower for the benefit of the Administrative Agent or any Lender in connection with this Agreement.
“Loan Party” or “Loan Parties” means, individually or collectively, the Borrowers and the Guarantors.
“Material Acquisition” means any Permitted Acquisition that involves the payment of consideration by a Borrower or Subsidiary in excess of $10,000,000.
“Material Adverse Effect” means a material adverse effect, excluding any Work Stoppage Event, on (i) the business, Property, financial condition or results of operations of the Borrowers and their Subsidiaries taken as a whole, (ii) the ability of any Loan Party to perform its material obligations under the Loan Documents to which it is a party, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent, the LC Issuers or the Lenders under the Loan Documents.
“Material Disposition” means any sale, transfer or disposition of property or series of related sales, transfers, or dispositions of property (other than inventory in the ordinary course of business) that yields gross proceeds to a Borrower or Subsidiary in excess of $5,000,000.
“Material Domestic Subsidiary” means each Domestic Subsidiary of the Parent (i) which, as of the most recent fiscal quarter of the Parent, for the period of four (4) consecutive fiscal quarters then ended for which financial statements have been delivered pursuant to Section 6.1, contributed greater than 5% of the Parent’s Consolidated EBITDA for such period or (ii) which contributed greater than 5% of the Parent’s consolidated total assets (excluding the assets of the Designated Subsidiaries) as of such date; provided that, if at any time the aggregate amount of the
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Consolidated EBITDA or consolidated total assets of all Subsidiaries (other than the Designated Subsidiaries) that are not Material Domestic Subsidiaries exceeds 15% of the Parent’s Consolidated EBITDA for any such period or 15% of the Parent’s consolidated total assets (excluding the assets of the Designated Subsidiaries) as of the end of any such fiscal quarter, the Parent (or, in the event the Parent has failed to do so within twenty (20) days, the Administrative Agent) shall designate sufficient Subsidiaries of the Parent (other than the Designated Subsidiaries) as “Material Domestic Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Subsidiaries. Notwithstanding the foregoing, no Designated Subsidiary shall constitute a Material Domestic Subsidiary.
“Material Indebtedness” means Indebtedness of any Borrower or any Subsidiary in an outstanding principal amount of $35,000,000 or more in the aggregate (or the equivalent thereof in any currency other than Dollars).
“Material Indebtedness Agreement” means any agreement under which any Material Indebtedness was created or is governed or which provides for the incurrence of Indebtedness in an amount which would constitute Material Indebtedness (whether or not an amount of Indebtedness constituting Material Indebtedness is outstanding thereunder).
“Minimum Collateral Amount” means, with respect to a Defaulting Lender, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of all LC Issuers with respect to such Defaulting Lender for all Facility LCs issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent and each LC Issuer in their reasonable discretion.
“Modify” and “Modification” are defined in Section 2.19(a).
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrowers or any ERISA Affiliate is a party to which more than one employer is obligated to make contributions.
“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Rate Management Transactions. “Unrealized losses” means the fair market value of the cost to such Person of replacing such Rate Management Transaction as of the date of determination (assuming the Rate Management Transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Rate Management Transaction as of the date of determination (assuming such Rate Management Transaction were to be terminated as of that date).
“Non-U.S. Lender” means a Lender that is not a United States person as defined in Section 7701(a)(30) of the Code.
“Note” is defined in Section 2.13(d).
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“Notes Payable” means all interest-bearing Indebtedness, excluding (i) the Obligations hereunder, (ii) Financing Lease Obligations, (iii) Subordinated Indebtedness and (iv) Receivables Transaction Attributed Indebtedness.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Obligations, all obligations in connection with Cash Management Services, all obligations in connection with Lender-Provided Swaps, all accrued and unpaid fees, and all expenses, reimbursements, indemnities and other obligations of each Borrower to the Lenders or to any Lender, the Administrative Agent, the LC Issuer or any indemnified party arising under the Loan Documents (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding); provided, that obligations in respect of Cash Management Services and Lender-Provided Swaps shall only constitute “Obligations” if owed to (i) U.S. Bank or one of its Affiliates or (ii) a Lender or an Affiliate of a Lender if the Administrative Agent shall have received notice in the form of Exhibit H from the relevant Lender not later than sixty (60) days after such Cash Management Services or Lender-Provided Swaps have been provided and the relevant Lender has provided such supporting documentation as the Administrative Agent may reasonably request; provided, further, that “Obligations” shall exclude all Excluded Swap Obligations.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Operating Lease” of a Person means any lease of Property (other than a Financing Lease) by such Person as lessee which has an original term (including any required renewals and any renewals effective at the option of the lessor) of one year or more.
“Other Connection Taxes” means, with respect to any Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Person and the jurisdiction imposing such Tax (other than connections arising from such Person 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.
“Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the aggregate principal amount of its Revolving Loans outstanding at such time, plus (ii) an amount equal to its Pro Rata Share of the aggregate principal amount of Swing Line Loans outstanding at such time, plus (iii) an amount equal to its Pro Rata Share of the LC Obligations at such time.
“Parent” means ArcBest Corporation (formerly known as Arkansas Best Corporation), a Delaware corporation.
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“Participant” is defined in Section 12.2(a).
“Participant Register” is defined in Section 12.2(c).
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
“Payment Date” means the last day of each calendar quarter, provided, that if such day is not a Business Day, the Payment Date shall be the immediately preceding Business Day.
“Payment Notice” is defined in Section 2.7.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Permitted Acquisition” means any Acquisition made by any Borrower or any Subsidiary, provided that, (a) as of the date of the consummation of such Acquisition, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.11 shall be true both before and after giving effect to such Acquisition, (b) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement that has been (if required by the governing documents of the seller or entity to be acquired) approved by the board of directors or other applicable governing body of the seller or entity to be acquired, (c) the business to be acquired in such Acquisition is in the same or a related line of business as any Borrower or Subsidiary or a line of business incidental thereto, (d) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained, (e) as of the date of the consummation of such Acquisition, the Parent shall have (i) a pro forma Adjusted Leverage Ratio of less than or equal to 3.25 to 1.00 for the four (4) fiscal quarter period most recently ended prior to such date and (ii) pro forma compliance with the financial covenants contained in Section 6.23 for such period, in each case, calculated as if such Acquisition, including the consideration therefor, had been consummated on the first day of such period; provided, that if the total consideration for such Acquisition is equal to or greater than $50,000,000, the Parent shall have furnished to the Administrative Agent, prior to the consummation of the applicable Permitted Acquisition, a certificate demonstrating compliance with clauses (i) and (ii) of this clause (e) in reasonable detail, and (f) the total consideration paid (i) for any single Permitted Acquisition shall not exceed $75,000,000, and (ii) all Permitted Acquisitions shall not exceed $125,000,000 in the aggregate in any fiscal year; provided, that if the Parent shall have furnished to the Administrative Agent, prior to the consummation of any Permitted Acquisition, a certificate demonstrating in reasonable detail that the Parent shall have a pro forma Adjusted Leverage Ratio of less than or equal to 2.50 to 1.00 after giving effect to the applicable Permitted Acquisition, the total consideration limits set forth in this clause (f) shall not apply to such Permitted Acquisition.
“Person” means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code or Section 302 of ERISA as to which any Borrower or any ERISA Affiliate may have any liability.
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“Pricing Schedule” means the Schedule attached hereto and identified as such.
“Prime Rate” means a rate per annum equal to the prime rate of interest announced from time to time by U.S. Bank or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment, provided, however, if all of the Commitments are terminated pursuant to the terms of this Agreement, then “Pro Rata Share” means the percentage obtained by dividing (a) such Lender’s Outstanding Credit Exposure at such time by (b) the Aggregate Outstanding Credit Exposure at such time; and provided, further, that when a Defaulting Lender shall exist, “Pro Rata Share” shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such Xxxxxx’s Commitment (except that no Lender is required to fund or participate in Revolving Loans, Swing Line Loans or Facility LCs to the extent that, after giving effect thereto, the aggregate amount of its outstanding Revolving Loans and funded or unfunded participations in Swing Line Loans and Facility LCs would exceed the amount of its Commitment (determined as though no Defaulting Lender existed)).
“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.
“Purchasers” is defined in Section 12.3(a).
“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).
“QFC Credit Support” has the meaning specified in Section 9.17.
“Qualified Receivables Transaction” means any of the following:
(a)the receivables financing facility evidenced by (i) the Third Amended and Restated Receivables Loan Agreement dated as of June 9, 2021, among ArcBest Funding LLC, as borrower, ArcBest II, Inc., as servicer, the financial institutions from time to time party thereto, as lenders and agent, (ii) the Second Amended and Restated Receivables Sale Agreement dated as of February 1, 2015, between ABF Freight System, Inc., MoLo Solutions, LLC (successor by merger to ArcBest Logistics, Inc.), ArcBest International, Inc., Panther II Transportation, Inc., ArcBest Enterprise Solutions, Inc., and ArcBest II, Inc., as originators, and ArcBest Funding LLC, as buyer, and (iii) the Second Amended and Restated Performance Guaranty dated as of June 9, 2021, made by ArcBest Corporation in favor of the agent for the benefit of the secured parties, in each case (A) as in effect on the date hereof and (B) as may be modified in conformity with the proviso within the definition of “Qualified Receivables Transaction” or with the consent of the Required Lenders; and
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(b)any other transaction or series of transactions that may be entered into by any Borrower or any other Subsidiary of the Parent pursuant to which any Borrower or any other Subsidiary of the Parent may sell, convey or otherwise transfer to a newly-formed Subsidiary or other special-purpose entity, or any other Person, any accounts or notes receivable and rights related thereto;
provided that:
(i)the Qualified Receivables Transaction shall not be amended, modified, refinanced or replaced subsequent to the date hereof to include or modify any negative covenants (to the extent such negative covenants are reflected both in the Qualified Receivables Transaction and the Loan Documents or such negative covenants are of the type that would be typical or customary for the transactions contemplated by the Loan Documents), financial covenants or events of default that are more restrictive or onerous than those set forth in the Loan Documents unless the Loan Documents are contemporaneously amended or modified to include the applicable revisions and/or provisions;
(ii)all of the terms and conditions of a transaction or series of transactions described in clause (b), including, without limitation, the amount and type of any recourse to any Borrower or any other Subsidiary with respect to the assets transferred, are, taken as a whole, no more restrictive or onerous in any material respect on the relevant Borrowers or Subsidiaries than the terms and conditions hereunder and under the other Loan Documents;
(iii)any Indebtedness incurred in connection with the Qualified Receivables Transaction or such transaction or series of transactions described in clause (b) is incurred at a market rate of interest;
(iv)any security given by such Person or Persons to secure such Indebtedness is limited to (A) the accounts receivable of such Person or Persons, the goods and inventory the sale of which gave rise to such accounts receivable, the liens, security interests, instruments and agreements arising under the contracts evidencing such accounts receivable and securing payment therefor, the contracts, records, and rights and payments directly corresponding to such accounts receivable, and the proceeds of any of the foregoing, in each case, sold to any special-purpose entity formed pursuant to any such Qualified Receivables Transaction and pledged thereunder, (B) all deposit accounts, securities accounts, other deposits (general or special, time or demand, provisional or final) with any bank or financial institution, cash collections, and other cash proceeds, and all proceeds of any of the foregoing, in each case related to any such Qualified Receivables Transaction, and (C) all assets of such special-purpose entity; and
(v)the Receivables Transaction Attributed Indebtedness incurred in connection with the Qualified Receivables Transaction described in clause (a) together with such transaction or series of transactions described in clause (b) does not exceed the principal amount of $175,000,000.
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“Rate Management Transaction” means any transaction (including an agreement with respect thereto) now existing or hereafter entered by any Borrower or any Subsidiary which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures, including, without limitation, Lender-Provided Swaps.
“Receivables Transaction Attributed Indebtedness” means the amount of obligations outstanding under the legal documents entered into as part of any Qualified Receivables Transaction on any date of determination.
“Reference Time” means the time determined by the Administrative Agent in its reasonable discretion.
“Register” is defined in Section 12.3(d).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
“Reimbursement Obligations” means, at any time, the aggregate of all obligations of the Borrowers then outstanding under Section 2.19 to reimburse all LC Issuers for amounts paid by the LC Issuers in respect of any one or more drawings under Facility LCs.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Rentals” of a Person means the aggregate fixed amounts payable by such Person under any Operating Lease.
“Reports” is defined in Section 9.6(a).
“Required Lenders” means at least two (2) Lenders in the aggregate having greater than 50% of the Aggregate Outstanding Credit Exposure. The Commitments and Outstanding Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
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“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) in respect of any equity interest in any Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such equity interests in any Borrower or any Subsidiary thereof or any option, warrant or other right to acquire any such equity interest in any Borrower or any Subsidiary thereof, but excluding, for the avoidance of doubt, payments in respect of any purchase price adjustments, earn-outs, indemnification obligations or similar Contingent Obligations in connection with any Permitted Acquisition or any disposition permitted under Section 6.13.
“Revolving Loan” means with respect to any Lender, individually or collectively as the context requires, such Lender’s loans made pursuant to its commitment to lend set forth in Section 2.1 (or any conversion or continuation thereof).
“Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States, including transition rules, and, in each case, any amendments to such regulations.
“S&P” means S&P Global Ratings, a division of S&P Global Inc.
“Sale and Leaseback Transaction” means any sale or other transfer of Property by any Person with the intent to lease such Property as lessee.
“Sanctioned Country” means, at any time, any country or territory which is itself, or whose government is, the subject or target of any comprehensive Sanctions.
“Sanctioned Person” means, at any time, (a) any Person or group listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person or group located, operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any Person 50% or more owned, individually or in the aggregate, directly or indirectly, or controlled by any of the above.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“Schedule” refers to a specific schedule to this Agreement, unless another document is specifically referenced.
“Screen” has the meaning provided in the definition of Term SOFR Screen Rate.
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“SEC” means the U.S. Securities and Exchange Commission.
“Section” means a numbered section of this Agreement, unless another document is specifically referenced.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Adjustment” means 0.10% per annum.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvent” means, with respect to any Person, (a) the fair value of the assets of such Person and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, subordinated, contingent or otherwise, of such Person and its Subsidiaries on a consolidated basis; (b) the present fair saleable value of the Property of such Person and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of such Person and its Subsidiaries on a consolidated basis on their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) such Person and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted after the date hereof.
“Stated Rate” is defined in Section 2.21.
“Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the Obligations to the written reasonable satisfaction of the Required Lenders and the Administrative Agent and none of the principal of which is payable until at least 180 days after the Facility Termination Date.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of a Borrower.
“Substantial Portion” means, with respect to the Property of the Parent and its Subsidiaries, Property which represents more than 10% of the consolidated assets of the Parent and its
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Subsidiaries taken as a whole or Property which is responsible for more than 10% of the sum of (a) the Consolidated Net Income of the Parent and its Subsidiaries plus (b) the net income (or loss) of the Designated Subsidiaries taken as a whole, in each case, as would be shown in the consolidated financial statements of the Parent and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such determination is made (or if financial statements have not been delivered hereunder for that month which begins the twelve-month period, then the financial statements delivered hereunder for the quarter ending immediately prior to that month).
“Supported QFC” has the meaning specified in Section 9.17.
“swap” means any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Counterparty” means, with respect to any swap with the Administrative Agent, any LC Issuer or any other Lender or any Affiliate of any of the foregoing, any Person that is or becomes a party to such swap.
“Swap Obligation” means, with respect to any Loan Party or Subsidiary thereof, any obligation to pay or perform under any swap between the Administrative Agent, any LC Issuer or any other Lender or any Affiliate of any of the foregoing and one or more Swap Counterparties.
“Swing Line Borrowing Notice” is defined in Section 2.4(b).
“Swing Line Lender” means U.S. Bank or such other Lender which may succeed to its rights and obligations as Swing Line Lender pursuant to the terms of this Agreement.
“Swing Line Loan” means a Loan made available to a Borrower by the Swing Line Lender pursuant to Section 2.4.
“Swing Line Sublimit” means the maximum principal amount of Swing Line Loans the Swing Line Lender may have outstanding to the Borrowers at any one time, which, as of the date of this Agreement, is $40,000,000.
“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions, fees, assessments, charges or withholdings (including backup withholding) imposed by any Governmental Authority, including interest, additions to tax and penalties applicable thereto.
“Term SOFR” means the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.
“Term SOFR Administrator” means CME Group Benchmark Administration Ltd. (or a successor administrator of Term SOFR).
“Term SOFR Administrator’s Website” means xxxxx://xxx.xxxxxxxx.xxx/xxxxxx-xxxx/xxx-xxxxx-xxxxxxxxx-xxxxxxxxxxxxxx/xxxx-xxxx, or any successor source for Term SOFR identified as such by the Term SOFR Administrator from time to time.
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“Term SOFR Advance” means an Advance that, except as otherwise provided in Section 2.11, bears interest at the applicable Adjusted Term SOFR Screen Rate (other than pursuant to clause (d) of the definition of Alternate Base Rate) plus the Applicable Margin therefor.
“Term SOFR Loan” means a Loan that, except as otherwise provided in Section 2.11, bears interest at the applicable Adjusted Term SOFR Screen Rate (other than pursuant to clause (d) of the definition of Alternate Base Rate) plus the Applicable Margin therefor.
“Term SOFR Screen Rate” means, for the relevant Interest Period, the Term SOFR rate quoted by the Administrative Agent from the Term SOFR Administrator’s Website or the applicable Bloomberg screen (or other commercially available source providing such quotations as may be selected by the Administrative Agent from time to time) (the “Screen”) for such Interest Period, which shall be the Term SOFR rate published two Business Days before the first day of such Interest Period (such Business Day, the “Determination Date”). If as of 5:00 p.m. (New York time) on any Determination Date, the Term SOFR rate has not been published by the Term SOFR Administrator or on the Screen, then the rate used will be that as published by the Term SOFR Administrator or on the Screen for the first preceding Business Day for which such rate was published on such Screen so long as such first preceding Business Day is not more than three (3) Business Days prior to such Determination Date.
“Term SOFR Swingline Rate” means the Adjusted Term SOFR Screen Rate for a one-month Interest Period plus the Applicable Margin for a Loan accruing interest at the Adjusted Term SOFR Screen Rate.
“Type” means, with respect to any Advance, its nature as a Base Rate Advance or a Term SOFR Advance and with respect to any Loan, its nature as a Base Rate Loan or a Term SOFR Loan.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within 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.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Undisclosed Administration” means in relation to a Lender the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Xxxxxx is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.
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“United States Person” means any Person that is a United States person as defined in section 7701(a)(30) of the Code.
“Unliquidated Obligations” means, at any time, any Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee or obligations under any Rate Management Transaction agreement or in respect of Cash Management Services) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.
“Unrestricted Cash” means, as of any date of determination, that portion of the Parent’s and its consolidated Domestic Subsidiaries’ (other than the Designated Subsidiaries) aggregate cash and Cash Equivalent Investments that is not encumbered by or subject to any Lien (including, without limitation, any Lien permitted hereunder, other than (a) Liens, if any, in favor of the Administrative Agent, for the benefit of the Lenders, and (b) bankers’ liens), setoff (other than pursuant to this Agreement and ordinary course setoff rights of a depository bank arising under a bank depository agreement for customary fees, charges and other account-related expenses due to such depository bank thereunder), counterclaim, recoupment, defense or other right in favor of any Person.
“U.S. Bank” means U.S. Bank National Association, a national banking association, in its individual capacity, and its successors.
“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary of which 100% of the beneficial ownership interests shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association, joint venture or similar business organization of which 100% of the beneficial ownership interests shall at the time be so owned or controlled.
“Work Stoppage Event” means a work stoppage, work slowdown in connection with collective bargaining activities, or strike by employees of any Loan Party or Subsidiary (i) that does not impair (as such impairment shall be determined by the Administrative Agent in its sole, good faith discretion) the ability of the Borrowers and the Guarantors, taken as a whole, to perform their material obligations under the Loan Documents (including, without limitation, any payment obligation thereunder) and (ii) that is of limited duration (as determined by the Administrative Agent in its sole discretion).
“Write-Down and Conversion Powers” means, (a) 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
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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.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. For purposes of this Agreement, Loans and Advances may be classified and referred to by Type (e.g., a “Term SOFR Loan” or a “Term SOFR Advance”).
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to the payment of any funding indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding Term SOFR Advances, or, in a minimum aggregate amount of $500,000 and incremental amounts in integral multiples of $100,000 (or the aggregate amount of the outstanding Loans at such time), any portion of the aggregate outstanding Term SOFR Advances upon delivery of a notice by 11:00 a.m. (Central time) to the Administrative Agent at least two (2) Business Days prior to such repayment. Notwithstanding any contrary provision in any Loan Document, any notice of prepayment delivered by the Borrowers in connection with (i) any refinancing of all or any portion of the Loans, (ii) any incurrence of Indebtedness or (iii) any asset sale or other disposition, in each case the proceeds of which transaction are intended to be used for such prepayment, may be contingent upon the consummation of such transaction and may be revoked by the Borrowers in the event such transaction is not consummated; provided, that should any such revocation occur, the Borrowers shall pay any associated funding indemnification amounts required by Section 3.4 and any other losses incurred by the Lenders as a result of such revocation.
(i)the Borrowing Date, which shall be a Business Day, of such Advance,
(ii)the aggregate amount of such Advance,
(iii)the Type of Advance selected, and
(iv)in the case of each Term SOFR Advance, the Interest Period applicable thereto.
Not later than 1:00 p.m. (Central time) on each Borrowing Date, each Lender shall make available its Loan or Loans in funds immediately available to the Administrative Agent at its address specified pursuant to Article XIII. The Administrative Agent will make the funds so received from the Lenders available to the applicable Borrower by wire or other electronic transfer to a U.S. account or U.S. accounts designated by such Borrower that are reasonably acceptable to the Administrative Agent.
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Period, such Term SOFR Advance continue as a Term SOFR Advance for the same or another Interest Period. The applicable Borrower may elect from time to time to convert all or any part of a Base Rate Advance (other than a Swing Line Loan) into a Term SOFR Advance. The applicable Borrower shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of a Base Rate Advance into a Term SOFR Advance, conversion of a Term SOFR Advance to a Base Rate Advance, or continuation of a Term SOFR Advance not later than 11:00 a.m. (Central time) at least two (2) Business Days prior to the date of the requested conversion or continuation, specifying:
(i) | the requested date, which shall be a Business Day, of such conversion or continuation, |
(ii)the Type of the Advance which is to be converted or continued, and
(iii) | the amount of such Advance which is to be converted into or continued as a Term SOFR Advance and the duration of the Interest Period applicable thereto. |
After giving effect to all Advances, all conversions of Advances from one Type to another and all continuations of Advances of the same Type, there shall be no more than eight (8) Interest Periods in effect hereunder.
Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or roll over all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrowers, the Administrative Agent and such Lender.
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Lenders may, at their option, by written notice to the Borrowers (which notice (and implementation) may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.3 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued as a Term SOFR Advance. During the continuance of an Event of Default the Required Lenders may, at their option, by notice to the Borrowers (which notice (and implementation) may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.3 requiring unanimous consent of the Lenders to changes in interest rates), declare that (i) each Term SOFR Advance shall from and after such notice bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2.00% per annum, (ii) each Base Rate Advance shall from and after such notice bear interest at a rate per annum equal to the Base Rate in effect from time to time plus 2.00% per annum and (iii) the LC Fee shall be increased by 2.00% per annum, provided that, during the continuance of an Event of Default under Section 7.6 or 7.7, the interest rates set forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in clause (iii) above shall be applicable to all Credit Extensions without any election or action on the part of the Administrative Agent or any Lender. After an Event of Default has been waived, the interest rate applicable to advances and the LC Fee shall revert to the rates applicable prior to the occurrence of an Event of Default.
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made but not for the day of any payment on the amount paid if payment is received prior to 1:00 (Central time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the immediately preceding Business Day.
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Affected Lender continues, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Event of Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) any Eligible Assignee or another bank or other Person that is reasonably satisfactory to the Borrowers and the Administrative Agent and, to the Borrowers’ and the Administrative Agent’s reasonable satisfaction, which Eligible Assignee or other bank or Person does not suffer from and is not impacted by the issue or event causing the replacement of the Affected Lender, shall agree, as of such date, to purchase for cash at par the Advances and other Obligations under this Agreement and the other Loan Documents due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.3 applicable to assignments, and (ii) the Borrowers shall pay to such Affected Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrowers hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Sections 3.1, 3.2, 3.4 and 3.5.
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an interest rate in excess of the Highest Lawful Rate. If the term of any Loan or any other Obligation outstanding hereunder or under the other Loan Documents is shortened by reason of acceleration of maturity as a result of any Event of Default or by any other cause, or by reason of any required or permitted prepayment, and if for that (or any other) reason any Lender at any time, including but not limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of interest calculated at the Highest Lawful Rate, then and in any such event all of any such excess interest shall be canceled automatically as of the date of such acceleration, prepayment or other event which produces the excess, and, if such excess interest has been paid to such Lender, it shall be credited pro tanto against the then-outstanding principal balance of the Borrowers’ Obligations to such Lender, effective as of the date or dates when the event occurs which causes it to be excess interest, until such excess is exhausted or all of such principal has been fully paid, whichever occurs first, and any remaining balance of such excess shall be promptly refunded to its payor.
| (i) | Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders. |
| (ii) | Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.1 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuer or the Swing Line Lender hereunder; third, to Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.22(a)(v); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Facility LCs issued under this Agreement, in accordance with Section 2.22(a)(v); sixth, to the payment of any amounts owing to the Lenders, the LC Issuers or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the LC Issuers or the |
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| Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Loans were made or the related Facility LCs were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Reimbursement Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.22(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. |
| (iii) | Certain Fees. (A) No Defaulting Lender shall be entitled to receive any commitment fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender). |
(B)Each Defaulting Lender shall be entitled to receive LC Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its ratable share of the stated amount of Facility LCs for which it has provided Cash Collateral pursuant to Section 2.22(d).
(C)With respect to any LC Fee not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrowers shall (x) pay to each non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Obligations or Swing Line Loans that has been reallocated to such non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the LC Issuers and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the LC Issuers’ or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
| (iv) | Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in LC Obligations and Swing Line Loans shall be reallocated among the non-Defaulting Lenders in accordance with their |
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| respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Outstanding Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment. Subject to Section 9.16, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Xxxxxx having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Xxxxxx’s increased exposure following such reallocation. |
| (v) | Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize the LC Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.22(d). |
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| (i) | Grant of Security Interest. Each Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the LC Issuers, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of LC Obligations, to be applied pursuant to clause (ii) below. If at any time the Administrative Agent reasonably determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the LC Issuers as herein provided or any bankers’ lien or ordinary course setoff rights of depositary banks with respect to the Cash Collateral (provided, that any such bankers’ liens or setoff rights are either in favor of the Administrative Agent or are subordinated to payment of the Obligations to the written satisfaction of the Administrative Agent), or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender). |
| (ii) | Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.22 in respect of Facility LCs shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of LC Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such Property as may otherwise be provided for herein. |
| (iii) | Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce the LC Issuers’ Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.22(d) following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the LC Issuers that there exists excess Cash Collateral; provided that, subject to this Section 2.22 the Person providing Cash Collateral and the LC Issuers may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by a Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents. |
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Agent and shall specify the name of such Material Domestic Subsidiary, such Material Domestic Subsidiary’s jurisdiction of organization, and the Business Day on which the Parent would like such joinder to be given effect. Such request shall be delivered at least fifteen (15) days prior to the date on which the Parent wishes to join such Borrowing Subsidiary hereto (or such later date as may be approved by the Administrative Agent in its sole discretion), and shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld or delayed). The Administrative Agent, subsequent to its receipt of such request, may ask the Parent for additional information related to the proposed Borrowing Subsidiary in its reasonable discretion. In order to join a Borrowing Subsidiary hereto, the Parent shall cause the delivery or reasonable satisfaction of the following to the Administrative Agent at least five (5) Business Days prior to the date on which the Parent has requested that such joinder be given effect (or such later date as may be approved by the Administrative Agent in its sole discretion): (i) a Borrowing Subsidiary Agreement executed by the Parent, the applicable Borrowing Subsidiary and the Administrative Agent, in the form of Exhibit I-1 hereto or otherwise in form and substance reasonably acceptable to the Administrative Agent, pursuant to which such Borrowing Subsidiary shall agree to be bound by the terms and conditions hereof and shall be entitled to request and receive Loans hereunder, (ii) joinder agreements to the Guaranty, and (iii) all other conditions precedent set forth in Section 4.3. The Administrative Agent shall promptly provide a copy of such Borrowing Subsidiary Agreement to the Lenders, the LC Issuers and the Swing Line Lender. Upon satisfaction of the requirements set forth in this Section 2.23, the applicable Borrowing Subsidiary shall for all purposes of this Agreement be a party to this Agreement until the Parent shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect to such Material Domestic Subsidiary, whereupon such Material Domestic Subsidiary shall cease to be a Borrowing Subsidiary and a party to this Agreement. Each Material Domestic Subsidiary that is or becomes a Borrowing Subsidiary pursuant hereto hereby irrevocably appoints the Parent as its agent for all purposes relevant to this Agreement and each related document, including service of process.
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Lender (other than the Lenders participating in the Additional Commitments) shall be required for any Additional Commitment pursuant to this Section 2.24. Additional Commitments created pursuant to this Section 2.24 shall become effective on the date agreed by the Borrowers, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Additional Commitments (or any Lender’s Additional Commitment) shall become effective under this section unless, (i) on the proposed date of the effectiveness of such increase or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 4.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer and (B) the Parent shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenants contained in Section 6.23 and (ii) the Administrative Agent shall have received documents consistent with those delivered on the Effective Date as to the power and authority of each Borrower to borrow hereunder after giving effect to such addition, as well as such documents as the Administrative Agent may reasonably request (including, without limitation, customary opinions of counsel, affirmations of Loan Documents and updated financial projections, reasonably acceptable to the Administrative Agent, demonstrating the Borrowers’ anticipated compliance with Section 6.23 through the Facility Termination Date).
On the effective date of any Additional Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such addition and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.3). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Term SOFR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 3.4 if the deemed payment occurs other than on the last day of the related Interest Periods. The Additional Commitments (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Facility Termination Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Facility Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Facility Termination Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans.
Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent at the time
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this Section 2.24 is exercised. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.24. On the effective date of the issuance of the Incremental Term Loans, each Increasing Lender and Augmenting Lender, if any, that has agreed to extend such an Incremental Term Loan shall make its ratable share thereof available to the Administrative Agent, for remittance to the Borrower, on the terms and conditions specified by the Administrative Agent at such time. Nothing contained in this Section 2.24 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
This Section shall supersede any provision in Section 8.3 to the contrary.
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| (i) | for any reason in connection with any request for a Term SOFR Advance or a Swing Line Loan accruing interest at the Term SOFR Swingline Rate or a conversion or continuation thereof that the Adjusted Term SOFR Screen Rate for any requested Interest Period with respect to a proposed Term SOFR Advance or a Swing Line Loan accruing interest at the Term SOFR Swingline Rate does not adequately and fairly reflect the cost to such Lenders of the funding such Loans, or |
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| (ii) | the interest rate applicable to Term SOFR Advances or a Swing Line Loan accruing interest at the Term SOFR Swingline Rate for any requested Interest Period is not ascertainable or available (including, without limitation, because the applicable Screen (or on any successor or substitute page on such screen) is unavailable) and such inability to ascertain or unavailability is not expected to be permanent, |
then the Administrative Agent shall suspend the availability of Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate and require any such affected Term SOFR Advances or Swing Line Loans to be repaid or converted to Base Rate Advances or Swing Line Loans accruing interest at the Base Rate, subject to the payment of any funding indemnification amounts required by Section 3.4.
| (ii) | Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. |
| (iii) | Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrowers and the Lenders of (A) the implementation of |
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| any Benchmark Replacement, and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.3(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.3(b). |
| (iv) | Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Screen Rate or the Term SOFR Swingline Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable or non-representative for any Benchmark settings and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. |
| (v) | Benchmark Unavailability Period. Upon notice to the Borrowers by the Administrative Agent in accordance with Section 13.1 of the commencement of a Benchmark Unavailability Period and until a Benchmark Replacement is determined in accordance with this Section 3.3(b), the applicable Borrower may revoke any request for a Term SOFR Advance or a Swing Line Loan accruing interest at the Term SOFR Swingline Rate, or any request for the conversion or continuation of a Term SOFR Advance or Swing Line Loan accruing interest at the Term SOFR Swingline Rate to be made, converted or continued during any Benchmark Unavailability Period at the end of the applicable Interest Period, and, failing that, the applicable Borrower will be deemed to have converted any such request at the end of the applicable Interest Period into a request for a Base Rate Advance or conversion to a Base Rate Advance. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the |
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| then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. |
Each Borrower hereby acknowledges that such Borrower shall be required to pay Interest Differential with respect to any portion of the principal balance paid or that becomes due before its scheduled due date, whether voluntarily, involuntarily, or otherwise, including any principal payment made following default, demand for payment, acceleration, collection proceedings, bankruptcy or other insolvency proceedings or otherwise. Such prepayment fee shall at all times be an Obligation as well as an undertaking by each Borrower to the Lenders whether arising out of a voluntary or mandatory prepayment.
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(ii)Without limiting the generality of the foregoing,
(A)any Lender that is a United States Person for U.S. federal income Tax purposes shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B)any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Non-U.S. Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E; or
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(iv) to the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable.
(C)any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender or Administrative Agent under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender or Administrative Agent were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or Administrative Agent shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or Administrative Agent has complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii)Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
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office to make, maintain, or fund Advances whose interest is determined by reference to the Term SOFR Screen Rate, or to determine or charge interest rates based upon the Term SOFR Screen Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, upon notice thereof by such Lender to the Borrowers (through the Administrative Agent), (a) any obligation of such Lender to make or continue Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate or to convert Base Rate Advances to Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Advances the interest rate on which is determined by reference to the Adjusted Term SOFR Screen Rate component of the Base Rate, the interest rate on which Base Rate Advances of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Screen Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate of such Lender to Base Rate Advances (the interest rate on which Base Rate Advances of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Screen Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Advances or Swing Line Loans accruing interest at the Term SOFR Swingline Rate and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Term SOFR Screen Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Adjusted Term SOFR Screen Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Term SOFR Screen Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.4.
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Each Borrowing Notice or Swing Line Borrowing Notice, as the case may be, or request for issuance of a Facility LC with respect to each such Credit Extension shall constitute a representation and warranty by the Borrowers that the conditions contained in Sections 4.2(a) and (b) have been satisfied.
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Each of the Borrowers, jointly and severally, represents and warrants to the Lenders that:
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to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite corporate, partnership or limited liability company authority to conduct its business (i) in its jurisdiction of formation and (ii) in each other jurisdiction in which its business is conducted, solely with respect to this clause (ii), except as would not reasonably be expected to result in a Material Adverse Effect.
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Subsidiaries, taken as a whole, which would reasonably be expected to have a Material Adverse Effect.
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misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances when made.
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During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing:
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If any information which is required to be furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by a Borrower with a government body on an earlier date, and is so filed on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date so filed.
Any financial statement or other information required to be furnished pursuant to Sections 6.1(a), (b), (e) or (f) shall be deemed to have been furnished on the date on which the Administrative Agent receives notice that the Parent has filed such financial statement or information with the SEC or it is available on the Parent’s website or the XXXXX website on the Internet at xxx.xxx.xxx or any successor government website that is freely and readily available to the Administrative Agent and the Lenders without charge. Notwithstanding the foregoing, the Borrowers shall deliver paper copies of any such financial statement or information to the Administrative Agent if the Administrative Agent reasonably requests the Borrowers to furnish such paper copies until written notice to cease delivering such paper copies is given by the Administrative Agent.
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Corruption Laws or (ii) in any manner that would result in the violation in any material respect of any applicable Sanctions.
| (i) | the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority (including pursuant to any applicable Environmental Laws) against or affecting any Borrower or any Subsidiary that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect; |
| (ii) | with respect to a Plan, (A) any failure of any Borrower or any ERISA Affiliate to pay all required minimum contributions and installments on or before the due dates provided under Section 430(j) of the Code, except as would not reasonably be expected to result in a Material Adverse Effect, or (B) the filing by any Borrower or any ERISA Affiliate pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard, except where failure to meet such standard would not reasonably be expected to result in a Material Adverse Effect; |
| (iii) | the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect; |
| (iv) | any material change in accounting policies of, or financial reporting practices by, any Borrower or any Subsidiary; |
| (v) | any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification; and |
| (vi) | any other development, financial or otherwise, which would reasonably be expected to have a Material Adverse Effect. |
Each notice delivered under this Section 6.3 shall be accompanied by a statement of an officer of the relevant Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
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Subsidiaries) to, carry on and conduct their business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted, or any related line of business or a line of business incidental thereto, (y) will cause each Designated Subsidiary to carry on and conduct those lines of business described in the definition of Designated Subsidiaries’ Businesses, and (z) will, and will cause each Subsidiary (including all Designated Subsidiaries) to do all things necessary to (i) remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a domestic corporation, partnership or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and (ii) maintain all requisite corporate, partnership or limited liability company authority to conduct its business in each jurisdiction in which its business is conducted, except, in the case of this clause (ii), as could not be reasonably expected to have a Material Adverse Effect.
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activities. The Borrowers will, and will cause each Subsidiary to, permit the Administrative Agent, by its representatives and agents, to inspect any of the Property, books and financial records of each Borrower and each Subsidiary, to examine and make copies of the books of accounts and other financial records of each Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of each Borrower and each Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Administrative Agent may designate; provided, however, that only one such inspection and examination may be conducted at the Borrowers’ expense in any fiscal year, unless an Event of Default has occurred and is continuing, in which case the Administrative Agent, any of its respective representatives or independent contractors, and any Lender shall not be so limited.
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pursuant to a Permitted Acquisition and (y) solely to the extent such Borrower or Subsidiary is the surviving entity after giving effect to such merger or consolidation, and (v) any Subsidiary, other than any Active Subsidiary, may merge into or consolidate with any other Subsidiary or liquidate or dissolve if the Parent determines in good faith that such transaction is not materially adverse to the Lenders.
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