Exhibit 10.1
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 1, 2022
Among
PRIMORIS SERVICES CORPORATION
as Borrower
THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO
as Lenders
and
CIBC BANK USA
as Agent, Joint Bookrunner, Joint Lead Arranger
Collateral Agent and Issuing Lender
Bank of the West
as Joint Bookrunner, Joint Lead Arranger
Co-Documentation Agent and Issuing Lender
and
BANK OF AMERICA, N.A.
as Joint Lead Arranger and Co-Documentation Agent
and
TRUIST SECURITIES
as Joint Lead Arranger
and
TRUIST BANK
as Co-Documentation Agent
and
FIRST HORIZON BANK
as Joint Lead Arranger and Co-Syndication Agent
and
REGIONS CAPITAL MARKETS, a division of Regions Bank
as Joint Lead Arranger
and
REGIONS BANK
as Co-Syndication Agent
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TABLE OF CONTENTS
Page
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iv
v
vi
ANNEXES
ANNEX A | Lenders and Pro Rata Shares |
ANNEX B | Addresses for Notices |
SCHEDULES
SCHEDULE 9.6 | Litigation and Contingent Liabilities |
SCHEDULE 9.8 | Subsidiaries |
SCHEDULE 9.16 | Insurance |
SCHEDULE 9.17 | Real Property |
SCHEDULE 9.21 | Labor Matters |
SCHEDULE 11.1 | Existing Debt |
SCHEDULE 11.2 | Existing Liens |
SCHEDULE 11.9 | Investments |
EXHIBITS
EXHIBIT A | Form of Note (Section 3.1) |
EXHIBIT B | Form of Compliance Certificate (Section 10.1(e)) |
EXHIBIT C | Form of Assignment Agreement (Section 15.6(a)) |
EXHIBIT D | Form of Notice of Borrowing (Section 2.2(b)) |
EXHIBIT E | Form of Notice of Conversion/Continuation (Section 2.2(c)) |
EXHIBIT F | Form of Subordination Agreement (Section 11.1(d)) |
EXHIBIT G | Form of Solvency Certificate (Section 12.1(h)) |
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 1, 2022 (this “Agreement”) is entered into among PRIMORIS SERVICES CORPORATION (“Borrower”), the other Loan Parties party hereto, the financial institutions that are or may from time to time become parties hereto (together with their respective successors and assigns, the “Lenders”) and CIBC BANK USA, in its capacity as Agent.
The Lenders have agreed to make available to Borrower a term loan facility and a revolving credit facility (which includes letters of credit) upon the terms and conditions set forth herein.
RECITALS
WHEREAS, the financial institutions parties thereto, as Lenders thereunder (the “Existing Lenders”), Borrower and the Agent (as defined herein) entered into that certain Second Amended and Restated Credit Agreement dated as of January 15, 2021 (as amended, restated, supplemented or otherwise modified to date, the “Existing Credit Agreement”) pursuant to which the Existing Lenders provided a $200,000,000 Revolving Commitment (the “Existing Revolving Commitment”) and a $592,500,000 term loan to Borrower (the “Existing Term Facility”);
WHEREAS, CIBC US agreed to serve as collateral agent (the “Collateral Agent”) for the Lenders pursuant to a Second Amended and Restated Guaranty and Collateral Agreement dated as of January 15, 2021 (as amended, restated, supplemented or otherwise modified to date, the “Existing Guaranty and Collateral Agreement”);
WHEREAS, Borrower has advised the Existing Lenders that Borrower intends to acquire, directly or indirectly, all of the equity interests of PLH Group, Inc., a Delaware corporation, (the “Target”) by way of the merger (the “Merger”) of Amp Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a Wholly-Owned Subsidiary of the Borrower, with and into the Target pursuant to the terms and conditions of the Agreement and Plan of Merger dated June 24, 2022 (the “Merger Agreement”) among the Borrower, the Target, Merger Sub, and Shareholder Representative Services LLC, a Colorado limited liability company, as the shareholder representative, pursuant to which, among other things, Merger Sub will cease to exist and the Target will become a direct Wholly-Owned Subsidiary of the Borrower;
WHEREAS, Borrower has requested that Lenders hereunder make a term loan to Borrower in the aggregate principal amount of $945,000,000 to (a) refinance the Existing Term Facility and (b) provide a new term loan in the aggregate amount of $425,000,000 (the “Merger Term Loan”) plus additional amounts to finance a portion of Borrower’s payment of the merger consideration payable in connection with the Merger;
WHEREAS, Borrower has requested that Lenders hereunder provide a new revolving loan commitment in the aggregate amount of $325,000,000 (the “Revolving Facility”) to refinance and increase the Existing Revolving Commitment;
WHEREAS, the Lenders, Borrower and the Agent have agreed to amend and restate the Existing Credit Agreement and the Existing Guaranty and Collateral Agreement in their entirety on the terms and conditions herein set forth in order to accommodate Borrower’s requests;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree that the Existing Credit Agreement hereby is amended and restated in its entirety as follows:
“Acceleration Event” means the occurrence of an Event of Default (a) in respect of which all or any portion of the Obligations have become or been declared due and payable pursuant to Section 13.2, (b) in respect of which all or a portion of the Revolving Commitment has been suspended or terminated pursuant to Section 13.2, or (c) arising under Section 13.1(a) as a result of a failure to pay the Revolving Outstandings in full on the Termination Date, or the outstanding principal balance of the Term Loan on the Termination Date.
“Account or Accounts” is defined in the Guaranty and Collateral Agreement.
“Account Debtor” is defined in the Guaranty and Collateral Agreement.
“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or a substantial portion of the assets of a Person, or of all or a substantial portion of any business unit, line of business, or division of a Person, (b) the acquisition of in excess of 50% of the Capital Securities of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is already a Subsidiary).
“Additional Lender” is defined in Section 2.2(e)(iv).
“Agent” means CIBC US in its capacity as administrative agent for the Lenders hereunder or as collateral agent for the Lenders, as applicable, and any successor thereto in such capacity.
“Affiliate” of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person, (b) any officer or director of such Person and (c) with respect to any Lender, any entity administered or managed by such Lender or an Affiliate or investment advisor thereof and which is engaged in making, purchasing, holding or otherwise investing in commercial loans. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to vote ten percent (10%) or more of any class of voting securities or other voting interests (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Unless expressly stated otherwise herein, neither Agent nor any Lender shall be deemed an Affiliate of any Loan Party. For purposes of clarity, Canadian Imperial Bank of Commerce and each of its direct and indirect subsidiaries are “Affiliates” of CIBC US.
“Agent Fee Letter” means the Fee Letter dated as of June 24, 2022 between Borrower and Agent.
“Agent Parties” is defined in Section 15.3(c).
“Agreement” is defined in the preamble of this Agreement.
“Applicable Law” means any Law which is applicable to the Loan Parties, their businesses or properties, the Loan Documents or the Loans hereunder.
“Applicable Margin” The Applicable Margin, L/C Fee Rate and Non-Use Fee Rate for the Term Loan and the Revolving Loan shall be determined in accordance with the following table based on the applicable Net Senior Debt to EBITDA Ratio, as determined in accordance with the most recent annual
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audited or quarterly unaudited financial statements and corresponding compliance certificate delivered pursuant to Section 10.1 herein. Adjustments, if any, to the Applicable Margin, L/C Fee Rate or Non-Use Fee Rate shall be effective five (5) Business Days after the earlier of (a) the date on which the Borrower is required to file its financial statements with the Securities and Exchange Commission and (b)(i) in the case of the annual audited financial statements, ninety (90) days after the end of each Fiscal Year of the Borrower, and (ii) in the case of the quarterly unaudited Financials, forty-five (45) days after the end of each of the first three quarters of each Fiscal Year of the Borrower; provided that if the Borrower fails to file any financial statements required pursuant to Section 10.1 herein on a timely basis, Level VI shall apply until such financial statements are filed. Initially, the Applicable Margin, L/C Fee Rate and Non-Use Fee Rate shall be based on Level VI through the end of the first full Fiscal Quarter after the Closing Date.
Level | Level I | Level II | Level III | Level IV | Level V | Level VI |
Net Senior Debt to EBITDA Ratio | ≤1.00x | >1.00x and ≤1.50x | >1.50x and ≤2.00x | >2.00x and ≤2.50x | >2.50x and ≤3.00x | >3.00x |
Applicable Margin for SOFR Loans (bps) | 125.0 | 150.0 | 175.0 | 200.0 | 225.0 | 250.0 |
Applicable Margin for Base Rate Loans (bps) | 25.0 | 50.0 | 75.0 | 100.0 | 125.0 | 150.0 |
L/C Fee Rate - Performance (bps) | 100.0 | 125.0 | 150.0 | 175.0 | 200.0 | 225.0 |
L/C Fee Rate - Financial (bps) | 125.0 | 150.0 | 175.0 | 200.0 | 225.0 | 250.0 |
Non-Use Fee Rate (bps) | 20.0 | 25.0 | 30.0 | 35.0 | 40.0 | 45.0 |
“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.
“Asset Disposition” means the sale, lease, transfer or disposal of assets of any of the Loan Parties.
“Assignee” is defined in Section 15.6(a).
“Assignment Agreement” is defined in Section 15.6(a).
“Attorney Costs” means, with respect to any Person, all reasonable fees and charges of any counsel to such Person and all court costs and similar legal expenses.
“Bail-In Action” is defined in Section 15.22.
“Bank Product Agreements” means those certain agreements entered into from time to time between any Loan Party and a Lender or its Affiliates in connection with any of the Bank Products, including without limitation, Hedging Agreements.
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“Bank Product Obligations” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by the Loan Parties to any Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that a Loan Party is obligated to reimburse to Agent or any Lender as a result of Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to the Loan Parties pursuant to the Bank Product Agreements.
“Bank Products” means any service provided to, facility extended to, or transaction entered into with, any Loan Party by any Lender or its Affiliates consisting of, (a) deposit accounts, (b) cash management services, including, controlled disbursement, lockbox, electronic funds transfers (including, book transfers, fedwire transfers, ACH transfers), online reporting and other services relating to accounts maintained with any Lender or its Affiliates, (c) debit cards and credit cards, (d) Hedging Agreements, (e) supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), or (f) so long as prior written notice thereof is provided by Lender (or its Affiliate) providing such service, facility or transaction and Agent consents in writing to its inclusion as a Bank Product, any other service provided to, facility extended to, or transaction entered into with, any Loan Party by a Lender or its Affiliates.
“Base Rate” means for any day, the greater of (a) the Federal Funds Rate for such day plus 0.5%, and (b) the Prime Rate for such day.
“Base Rate Loan” means any Loan which bears interest at or by reference to the Base Rate.
“Benchmark” is defined in Section 15.24.
“Benchmark Conforming Changes” is defined in Section 15.24.
“Benchmark Replacement” is defined in Section 15.24.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” is defined in the preamble of this Agreement.
“BSA” is defined in Section 10.4.
“Business Day” means a day of the week (but not a Saturday, Sunday or holiday) on which the Chicago, Illinois offices of Agent are open to the public for carrying on substantially all of Agent’s business functions, provided, however, that when used in the context of a SOFR Loan, the term “Business Day” shall also exclude any day that is not also a SOFR Business Day. Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.
“Capital Expenditures” means all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of Borrower, including expenditures in respect of Capital Leases, but excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (a) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (b) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced.
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“Capital Lease” means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.
“Capital Securities” means, with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after the Closing Date, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership, interests in a trust, interests in other unincorporated organizations or any other equivalent of such ownership interest.
“Cash Collateralize” means to deliver cash collateral to an Issuing Lender, for the benefit of one or more of the Issuing Lenders or Lenders, to be held as cash collateral for outstanding Letters of Credit, pursuant to documentation satisfactory to such Issuing Lender and in an amount satisfactory to such Issuing Lender which amount may exceed the Stated Amount of outstanding Letters of Credit. Derivatives of such term have corresponding meanings.
“Cash Equivalent Investment” means, at any time, (a) any evidence of Debt, maturing not more than one year from date of acquisition, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-1 by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-1 by Moody’s Investors Service, Inc., (c) any certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year after such time, or any overnight Federal Funds transaction that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000), (d) any repurchase agreement entered into with any Lender (or commercial banking institution of the nature referred to in clause (c)) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) above and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder and (e) money market accounts or mutual funds which invest exclusively in assets satisfying the foregoing requirements, and (f) other short term liquid investments approved in writing by Agent.
“Cash Interest” means, for any period, for the Borrower and its Subsidiaries on a Consolidated basis, an amount equal to the sum of all interest, premium payments, fees, charges and related expenses of the Borrower and its Subsidiaries in connection with borrowed money (including Capitalized Leases) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP and to the extent actually paid in cash, and any premiums, fees, discounts, expenses and losses on the sale of accounts receivable (and any amortization thereof) payable in cash by the Borrower or a Subsidiary to one or more financial institutions in connection with a Permitted Securitization.
“Certificate of Beneficial Ownership” means a certificate regarding beneficial ownership delivered pursuant to Section 12.1(q), as from time to time updated in accordance with the terms of this Agreement, as required by the Beneficial Ownership Regulation.
“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender) of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having
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the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof) of Capital Securities representing more than 35% of the ordinary voting power represented by the issued and outstanding Capital Securities of Borrower.
“CIBC US” means CIBC BANK USA, in its individual capacity.
“Claims” is defined in Section 15.27.
“Closing Date” is defined in Section 12.1.
“Code” means the Internal Revenue Code of 1986, as amended from time to time and any successor statute.
“Collateral” is defined in the Guaranty and Collateral Agreement of even date herewith executed by the Loan Parties provided that, no part of the Collateral shall include the pledge or collateralization of any voting equity in any Receivables Subsidiary.
“Collateral Agent” is defined in the Recitals to this Agreement.
“Collateral Documents” means, collectively, the Guaranty and Collateral Agreement, each Perfection Certificate, each control agreement and any other agreement or instrument pursuant to which Borrower, any Subsidiary, or any other Person grants or purports to grant collateral to Agent for the benefit of the Lenders or otherwise relates to such collateral.
“Commitment” means, as to any Lender, such Lender’s commitment to make Loans, and to issue or participate in Letters of Credit, under this Agreement. The initial amount of each Lender’s Commitment is set forth on Annex A.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time and any successor statute.
“Compliance Certificate” means a Compliance Certificate in substantially the form of Exhibit B.
“Computation Period” means each period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated” means the consolidation of the accounts of, unless otherwise noted, the Borrower and the Subsidiaries in accordance with GAAP.
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“Consolidated EBIT” means for any period, without duplication and on a Consolidated basis (i) Net Income, plus to the extent deducted (other than with respect to clause (e) below) in calculating such Net Income (a) interest expense (less interest income), (b) provision for income taxes, (c) the Merger Transaction Costs calculated in accordance with GAAP, (d) the Merger Integration Costs calculated in accordance with GAAP and (e) the amount of “run-rate” cost savings, operating expense reductions, other operating improvements, initiatives and synergies related to any Investment, acquisition, disposition, merger, consolidation, reorganization or restructuring permitted under this Agreement that are reasonably identifiable and factually supportable and projected by Borrower in good faith to be reasonably anticipated to be realizable as a result of actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months after any such Investment, acquisition, disposition, merger, consolidation, reorganization or restructuring, or cost savings initiative (which, in each case, shall be added to Consolidated EBIT as so projected until fully realized and calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements, initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized prior to or during such period from such actions, provided that the aggregate amount added back pursuant to this clause (e) may not exceed, when aggregated with the amount of any increase for such period to EBITDA on a pro forma basis, 15% for any four Fiscal Quarter period of EBITDA for such period (prior to giving effect to any increase pursuant to this clause (e), (ii) plus income (or less loss) from Persons in which Borrower or any of the Subsidiaries holds an ownership interest in any Capital Securities issued by such Person and which Person is not Consolidated with Borrower, calculated in accordance with GAAP (and for the avoidance of doubt, such income (or loss) shall be in a pro rata amount equal to the Borrower’s or its Subsidiary’s percentage of ownership interest, and not all of the income (or loss) of from such Person), (iii) less income (or plus loss) attributable to any non-controlling interests, calculated in accordance with GAAP and (iv) less, to the extent not deducted in determining Net Income for such period, all cash payments made during such period on account of non-cash charges that were added to Net Income in computing Consolidated EBIT for a prior period. For the avoidance of doubt, Consolidated EBIT includes the Consolidated EBIT attributable to the Target for the portion of such period prior to the Merger.
“Construction Partnership” means any Joint Venture to the extent not constituting an Investment (without giving effect to the final proviso of the definition of “Investment”) with any other Person (other than the Borrower or any of the Subsidiaries) which Joint Venture is entered into and exists for the purpose of engagement in business activities related to teaming the performance of construction or construction/engineering related services delivered by the Borrower or any other Loan Party for one or more projects.
“Contingent Liability” means, with respect to any Person, each obligation and liability of such Person and all such obligations and liabilities of such Person incurred pursuant to any agreement, undertaking or arrangement by which such Person: (a) guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability of any other Person in any manner (other than by endorsement of instruments in the course of collection), including any indebtedness, dividend or other obligation which may be issued or incurred at some future time; (b) guarantees the payment of dividends or other distributions upon the Capital Securities of any other Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or liability of any other Person or any property or assets constituting security therefor, (ii) to advance or provide funds for the payment or discharge of any indebtedness, obligation or liability of any other Person (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, working capital or other financial condition of any other Person, or (iii) to make payment to any other Person other than for value received; (d) agrees to lease property or to purchase securities, property or services from such other Person with the purpose or intent of assuring the owner of
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such indebtedness or obligation of the ability of such other Person to make payment of the indebtedness or obligation; (e) to induce the issuance of, or in connection with the issuance of, any Letter of Credit for the benefit of such other Person; or (f) undertakes or agrees otherwise to assure a creditor against loss. The amount of any Contingent Liability shall (subject to any limitation set forth herein) be deemed to be the outstanding principal amount (or maximum permitted principal amount, if larger) of the indebtedness, obligation or other liability guaranteed or supported thereby.
“Controlled Group” means all members of a controlled group of corporations, all members of a controlled group of trades or businesses (whether or not incorporated) under common control and all members of an affiliated service group which, together with Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all indebtedness evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (d) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (e) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person; provided that if such Person has not assumed or otherwise become liable for such indebtedness, such indebtedness shall be measured at the fair market value of such property securing such indebtedness at the time of determination, (f) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn), bankers’ acceptances and similar obligations issued for the account of such Person (including the Letters of Credit), (g) Hedging Obligations of such Person but only to the extent amounts are due and payable under Hedging Agreements, (h) all Contingent Liabilities of such Person, (i) all Debt of any partnership of which such Person is a general partner, (j) all non-compete payment obligations, earn-outs and similar obligations to the extent such obligations have become a liability on the balance sheet of such Person in accordance with GAAP and (k) any Capital Securities or other equity instrument, whether or not mandatorily redeemable, that under GAAP is characterized as debt, whether pursuant to financial accounting standards board issuance No. 150 or otherwise. Notwithstanding the foregoing, Debt shall not include (i) any indebtedness and/or other obligations that are Cash Collateralized, (ii) indebtedness and/or other obligations of such Person to the extent fully collateralized by Letters of Credit and/or (iii) surety bond obligations of such Person except to the extent a reimbursement obligation arises of such Person arises thereunder which remains unpaid. Additionally, for the avoidance of doubt, Debt shall not include operating leases pursuant to ASC 842 issued by the financial accounting standards board.
“Default” means any event or condition that, if it continues uncured, will, with lapse of time or notice or both, constitute an Event of Default.
“Default Rate” is defined in Section 4.1(b).
“Defaulting Lender” means, subject to Section 2.6(b), any Lender that (a) has failed to fund any portion of the Loans, participations in Letters of Credit or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such Lender notifies Agent and Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding have not been satisfied (each of which failures shall be specifically identified in such notice), (b) has otherwise failed to pay over to Agent, Issuing Lender, Swing Line Lender or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (c) has (i) been deemed or has a direct or indirect parent company that has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding, or had appointed for it a receiver, custodian, conservator, trustee,
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administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity or (ii) 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 with 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, (d) has notified Borrower, Agent, any Issuing Lender, Swing Line Lender or any other Lender that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit (unless such notice or public statement indicates that such intention is based on a good faith determination that one or more conditions precedent to funding have not been satisfied (which notice or public statement specifically identifies the conditions not satisfied and the basis therefor)) or (e) has failed to confirm within three (3) Business Days of a request by Agent that it will comply with the terms of this Agreement relating to its obligations to fund prospective Revolving Loans and participations in then outstanding Letters of Credit and Swing Line Loans. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.6(d)) upon delivery of written notice of such determination to Borrower, each Issuing Lender, each Swing Line Lender, and each Lender promptly following such determination.
“Designated Proceeds” is defined in Section 6.2(b).
“Dollar” and the sign “$” mean lawful money of the United States of America.
“Dollar Equivalent” means, with respect to any amount denominated in Dollars, such amount of Dollars, and with respect to any amount denominated in a currency other than Dollars, the amount of Dollars, as of any date of determination, into which such other currency can be converted in accordance with prevailing exchange rates, as determined by the Agent in its reasonable discretion, on the applicable date.
“Earn-Outs” means contingent earn-out liabilities as reflected on the financial statements delivered pursuant to Section 10.1.
“Effect” means any effect, change, event, occurrence, development or circumstance.
“EBITDA” means, for any Computation Period, as calculated in accordance with GAAP, Consolidated EBIT for such period plus Consolidated depreciation, amortization and other noncash charges of the Borrower and the Subsidiaries as agreed to by Agent. Notwithstanding the foregoing, (a) EBITDA for the Fiscal Quarter ended on December 31, 2021 shall be deemed to be $93,802,000, (b) EBITDA for the Fiscal Quarter ended on March 31, 2022 shall be deemed to be $30,751,000, and (c) EBITDA for the Fiscal Quarter ended on June 30, 2022 shall be deemed to be $104,407,000.
“EBITDA to Cash Interest Ratio” means, for any Computation Period, as calculated in accordance with GAAP, the ratio of (a) EBITDA for the period of the four prior Fiscal Quarters ending on such date to (b) Cash Interest for such period.
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“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for an unauthorized or unlawful release or injury to the environment.
“Environmental Laws” means all present or future federal, state local and foreign laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative or judicial orders, consent agreements, licenses, decrees, concessions, grants, authorizations and permits of, and agreements with, any Governmental Authority, in each case relating to any matter arising out of or relating to public health and safety, or pollution or protection of the environment or workplace, including those related to Hazardous Substances, air emissions, discharges to waste or public systems and health and safety matters.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute.
“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” means any of the events described in Section 13.1.
“Excluded Swap Obligations” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a 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 United States Commodity Futures Trading Commission (or the application or official interpretation of any thereof). 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 any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office, or having its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the Person with respect to an applicable interest in a Loan or Commitment pursuant to the Applicable Law in effect on the date on which (i) such Person acquires such interest in the Loan or Commitment or (ii) such Person changes its lending office, except, in each case, to the extent that, pursuant to Section 7.9, amounts with respect to such Taxes were payable either to such Person’s assignor immediately before such Person became a party hereto or to such Person immediately before it changed its lending office, (c) Taxes attributable to such Person’s failure to comply with Section 7.9(d) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” is defined in the Recitals to this Agreement.
“Existing Guaranty and Collateral Agreement” is defined in the Recitals to this Agreement.
“Existing Lenders” is defined in the Recitals to this Agreement.
“Existing Revolving Commitment” is defined in the Recitals to this Agreement.
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“Existing Term Facility” is defined in the Recitals to this Agreement.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor or version that is substantially compatible and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into by the United States pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
“FCPA” is defined in Section 9.22(d).
“Federal Funds Rate” means, for any day, a fluctuating interest rate equal for each day during such period to the greater of (a) the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary 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 and (b) 0%, or, if such rate is not so published for any day which is a Business Day, the rate determined by Agent in its discretion. Agent’s determination of such rate shall be binding and conclusive absent manifest error.
“Fiscal Quarter” means a fiscal quarter of a Fiscal Year.
“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries, which period shall be the 12-month period ending on December 31 of each year.
“Fixed Assets” means, on any date of determination and on a Consolidated (unless otherwise noted) basis determined in accordance with GAAP, equipment, real property and any other long term fixed asset of the Borrower and the Subsidiaries.
“Floor” means a rate of interest equal to 0%.
“FRB” means the Board of Governors of the Federal Reserve System or any successor thereto.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations with respect to Letters of Credit issued by such Issuing Lender other than Letter of Credit 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 any Swing Line Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Loans made by such 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 primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession) and the
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Securities and Exchange Commission, which are applicable to the circumstances as of the date of determination.
“General Intangibles” is defined in the Guaranty and Collateral Agreement.
“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 any supra-national bodies such as the European Union or the European Central Bank).
“Group” is defined in Section 2.2(a).
“Guarantor” means each Subsidiary which is a party to the Guaranty and Collateral Agreement (which for the avoidance of doubt, excludes any Receivables Subsidiary).
“Guaranty and Collateral Agreement” means the Third Amended and Restated Guaranty and Collateral Agreement dated as of the date hereof executed and delivered by the Loan Parties, together with any joinders thereto and any other guaranty and collateral agreement executed by a Loan Party, in each case in form and substance satisfactory to Agent.
“Hazardous Substances” means hazardous waste, hazardous substance, pollutant, contaminant, toxic substance, oil, hazardous material, chemical or other substance regulated by or with respect to which liability or standards of conduct are imposed pursuant to any Environmental Law.
“Hedging Agreement” means any bank underwritten cash and/or derivative financial instrument including, but not limited to, any interest rate, currency or commodity swap agreement, cap agreement, collar agreement, spot foreign exchange, forward foreign exchange, foreign exchange option (or series of options) and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices.
“Hedging Obligation” means, with respect to any Person, any liability of such Person under any Hedging Agreement.
“Immaterial Subsidiary” means any Subsidiary designated as such by the Borrower; provided, that (i) the Operating Income of any Immaterial Subsidiary for any Computation Period shall not exceed $4,000,000, and (ii) the Operating Income of all Immaterial Subsidiaries collectively (after intercompany eliminations) for any Computation Period shall not exceed ten percent (10%) of the Operating Income of the Borrower and the Subsidiaries. At any time, Borrower may designate an Immaterial Subsidiary as a Material Subsidiary and, upon such designation, such Subsidiary shall no longer be an Immaterial Subsidiary.
“Incremental Increase Amount” is defined in Section 2.2(e)(i)
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Intangible Assets” means General Intangibles.
“Inventory” is defined in the Guaranty and Collateral Agreement.
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“Investment” means, with respect to any Person, any investment in another Person, whether by acquisition of any debt or Capital Security, by making any loan or advance, by becoming obligated with respect to a Contingent Liability in respect of obligations of such other Person (other than travel and similar advances to employees in the ordinary course of business) or by making an Acquisition; provided that, for purposes of clarification, a Construction Partnership shall not constitute an Investment hereunder. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment; provided that such Investments shall be reduced by the amount of any cash (but in each case, only to the extent actually received in cash) received by such Person with respect to that particular Investment thereto.
“Issuing Lender” means CIBC US or Bank of the West, in their respective capacities as the issuer of Letters of Credit hereunder, or any Affiliate of either that may from time to time issue Letters of Credit, or any other financial institution that either may cause to issue Letters of Credit for the account of Borrower, and their successors and assigns in such capacity, provided that such Lender has agreed to be an Issuing Lender.
“Joint Bookrunners” mean CIBC US and Bank of the West.
“Joint Venture” means (i) any joint venture entity, whether a company, unincorporated firm, association, partnership or any other entity which, in each case, is not a Subsidiary of the Borrower or any of the Subsidiaries but in which the Borrower or a Subsidiary has a direct or indirect Investment in the Capital Securities issued by such joint venture entity and/or joint or shared control with one or more other Persons (other than the Borrower or any Subsidiary) and (ii) any asset or group of assets in which the Borrower or any Subsidiary thereof has a joint or shared ownership interest and/or control with one or more other Persons (other than the Borrower or any Subsidiary).
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Application” means, with respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form being used by an Issuing Lender at the time of such request for the type of letter of credit requested.
“L/C Fee Rate” is defined in the definition of Applicable Margin.
“L/C Fronting Fee” means the fronting fee in the amount of 12.5 basis points per annum, applied to the outstanding amount of any letters of credit, paid by the Borrower to any Issuing Lender quarterly in arrears.
“L/C Sublimit” means $325,000,000.
“LCT Determination Date” is defined in Section 1.3(c).
“LCT Election” is defined in Section 1.3(c).
“L/C Termination Date” means that date which is 36 months beyond the Termination Date.
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“Lender” is defined in the preamble of this Agreement. References to the “Lenders” shall include the Issuing Lenders; for purposes of clarification only, to the extent that either CIBC US or Bank of the West (or any successor Issuing Lenders) may have any rights or obligations in addition to those of the other Lenders due to its respective status as Issuing Lender, its status as such will be specifically referenced. In addition to the foregoing, for the purpose of identifying the Persons entitled to share in the Collateral and the proceeds thereof under, and in accordance with the provisions of, this Agreement and the Collateral Documents, the term “Lender” shall include Affiliates of a Lender providing a Bank Product.
“Lender Party” is defined in Section 15.17.
“Letter of Credit” is defined in Section 2.1(c).
“Letter of Credit Obligations” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all payments made by an Issuing Lender pursuant to a Letter of Credit that have not yet been reimbursed by or on behalf of Borrower at such time. The Letter of Credit Obligations of any Lender at any time shall be its Pro Rata Share of the total Letter of Credit Obligations at such time.
“Lien” means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person (including an interest in respect of a Capital Lease) which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.
“Limited Condition Transaction” means any Permitted Acquisition whose consummation is not conditioned on the availability of, or on obtaining, third-party financing (and for which third-party financing commitments are obtained).
“Liquidity” means Unencumbered Cash plus Revolving Loan Availability.
“Loan Documents” means, collectively, this Agreement, the Notes, the Letters of Credit, the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter, the Collateral Documents and any Subordination Agreements and all such documents, instruments and agreements delivered in connection with the foregoing.
“Loan Party” means Borrower and each Guarantor. Notwithstanding anything herein to the contrary, for the purposes of (a) determining compliance with any covenant in Section 10 or Section 11 of this Agreement (other than Section 10.9), or related definitions in Section 1 of this Agreement, and (b) determining whether an Event of Default has occurred and is continuing under Section 13.1 of this Agreement, “Loan Party” shall also include each Immaterial Subsidiary.
“Loan or Loans” means, as the context may require, Revolving Loans, Term Loan or Swing Line Loans.
“Mandatory Prepayment Event” is defined in Section 6.2(b).
“Margin Stock” means any “margin stock” as defined in Regulation U.
“Master Letter of Credit Agreement” means, at any time, with respect to the issuance of Letters of Credit, a master letter of credit agreement or reimbursement agreement in the form, if any, being used by an Issuing Lender at such time.
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“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business or properties of the Loan Parties taken as a whole, (b) a material impairment of the rights and remedies of the Agent or of the ability of any Loan Party to perform any of the Obligations under any Loan Document, or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document against the Loan Parties taken as a whole.
“Material Subsidiary” means any Subsidiary that is not an Immaterial Subsidiary.
“Merger” is defined in the Recitals to this Agreement.
“Merger Agreement” is defined in the Recitals to this Agreement.
“Merger Agreement Representations” means the representations and warranties made by the Target in the Merger Agreement that are material to the interests of the Lenders (in their capacity as such), but only to the extent that Borrower (or any of its Affiliates) has the right not to consummate the Merger or to terminate its (or its Affiliates’) obligations under the Merger Agreement (and without regard to whether any notice is required to be delivered under the Merger Agreement and without regard to waiver or amendment (if materially adverse to the interests of the Lenders) of or to any such representations) as a result of a breach of such representations or warranties.
“Merger Certificate” means the Certificate of Merger to be filed with the Delaware Secretary of State certifying that the Merger has occurred.
“Merger Consideration” as the meaning ascribed to such term in the Merger Agreement.
“Merger Documents” means the Merger Agreement, the Merger Certificate, and all other “Transaction Documents” (as such term is defined in the Merger Agreement).
“Merger Integration Costs” means integration fees and expenses incurred by Borrower in connection with (i) the Merger, not to exceed $15,092,000 in the aggregate, which are paid within eighteen (18) months after the Closing Date; and (ii) future mergers in amounts acceptable to Agent.
“Merger Sub” means is defined in the Recitals hereto.
“Merger Term Loan” means is defined in the Recitals hereto.
“Merger Transaction Costs” means transaction fees and expenses incurred by Borrower in connection with (i) the Merger, not to exceed $21,805,115 in the aggregate, which are paid within twelve (12) months after the Closing Date, and (ii) future mergers in amounts acceptable to Agent.
“Multiemployer Pension Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which Borrower or any other member of the Controlled Group (i) is or may be obligated to make contributions, (ii) during the preceding five plan years has made or been obligated to make contributions, or (iii) has any liability.
“Net Cash Proceeds” means:
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“Net Income” means, for any period, for Borrower and its Subsidiaries, the Consolidated net income of Borrower and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.
“Net Senior Debt” means, as of any date of determination and on a Consolidated basis all Debt of the Loan Parties net of Unencumbered Cash in excess of $15,000,000, and excluding the Stated Amount of all Letters of Credit (but including outstanding reimbursement obligations of such Letters of Credit).
“Net Senior Debt to EBITDA Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (a) Net Senior Debt to (b) EBITDA of the Loan Parties for the Computation Period ending on such day.
“Net Worth” means, as of any date, the sum of the capital stock and additional paid-in capital plus retained earnings (or minus accumulated deficit) and less equity from non-controlling interests calculated in conformity with GAAP.
“Non-Consenting Lender” is defined in Section 15.1.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-U.S. Participant” is defined in Section 7.9(d).
“Non-Use Fee Rate” is defined in the definition of Applicable Margin.
“Note” means a promissory note substantially in the form of Exhibit A.
“Notice of Borrowing” is defined in Section 2.2(b).
“Notice of Conversion/Continuation” is defined in Section 2.2(c).
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties (monetary (including post-petition interest, allowed or not) or otherwise) of any Loan Party under this Agreement and any other Loan Document including Attorney Costs and any reimbursement obligations of each Loan Party in respect of Letters of Credit and surety bonds, all Hedging Obligations permitted hereunder which are owed to any Lender (or its Affiliates) or Agent, and all other Bank Products Obligations, all in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due and including interest and fees that accrue
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after the commencement by or against Borrower or any Affiliate thereof of any proceeding under any debtor relief laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, indemnities and other amounts payable by Borrower under any Loan Document. Notwithstanding the foregoing, the Obligations shall not include, with respect to any Loan Party, any Excluded Swap Obligations of any such Loan Party.
“OFAC” is defined in Section 10.4.
“Operating Income” means, for any Person the operating income for the applicable Computation Period as reported in the financial statements of the Borrower or its Subsidiaries.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court, transfer, value added, excise or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 8.7).
“Participant” is defined in Section 15.6(b).
“Participant Register” is defined in Section 15.7.
“Patriot Act” is defined in Section 15.16.
“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.
“Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA or the minimum funding standards of ERISA (other than a Multiemployer Pension Plan), and as to which Borrower or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Perfection Certificate” means a perfection certificate executed and delivered to Agent by a Loan Party.
“Permitted Acquisition” means any Acquisition by Borrower or any Loan Party where:
(A) the business or division acquired are for use, or the Person acquired is engaged, in the construction and engineering businesses engaged in by the Loan Parties on the date hereof or otherwise as required to preserve compliance with Section 11.3;
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(B) immediately before such Acquisition, and as a consequence of such Acquisition, no Default or Event of Default shall exist;
(C) immediately after giving effect to such Acquisition, the Borrower is in Pro Forma Compliance with the financial covenants set forth in Section 11.12 herein;
(D) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(E) within thirty (30) days following such Acquisition, the Agent and the Collateral Agent shall have received complete execution copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Agent and/or the Collateral Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(F) subject to the proviso set forth in the definition of Collateral, simultaneously (or at such other time as is required to comply with the terms of Section 10.9) with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of Capital Securities) or the Loan Parties (if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity) executes and delivers to the Collateral Agent, the Agent and the Lenders a Guaranty and Collateral Agreement or a supplement thereto and such documents necessary to grant to the Collateral Agent a Lien in all of the assets (subject to any exceptions in the applicable Collateral Documents and subject to the proviso set forth in the definition of Collateral) of such target company or surviving company, and their respective Subsidiaries, each in form and substance and with such perfection and priority as is satisfactory to the Collateral Agent, the Agent and the Lenders and, in the event of an Acquisition structured as a purchase of Capital Securities, the issuer of such Capital Securities becomes a party to the Guaranty and Collateral Agreement as a Guarantor thereunder, in accordance with the terms thereof;
(G) for an Acquisition the consideration for which is greater than $100,000,000, Agent shall have approved the Borrower’s computation of Pro Forma EBITDA and the Borrower shall deliver a quality of earnings report to the Agent, in form and substance reasonably acceptable to the Agent from a nationally recognized firm reasonably acceptable to the Agent;
(H) if the Acquisition is structured as a merger involving the Borrower, the Borrower is the surviving entity, or if the Acquisition is structured as a merger involving a Guarantor, a Guarantor is the surviving entity;
(I)if the aggregate consideration for an Acquisition exceeds $100,000,000, Borrower shall have minimum pro forma Liquidity of $25,000,000;
(J)if the aggregate consideration for an Acquisition exceeds $100,000,000, the Net Senior Debt to EBITDA Ratio shall be 0.25x less on a proforma basis than the Net Senior Debt to EBITDA Ratio required by Section 11.12(b) herein; and
(K) if the aggregate consideration for an Acquisition exceeds $100,000,000, prior to the execution of a purchase agreement, the Borrower shall have delivered to the Agent a certificate of a Financial Officer of the Borrower, in a form reasonably satisfactory to the Agent, certifying that the applicable requirements set forth in this definition have been satisfied with respect to such Acquisition.
“Permitted Lien” means a Lien expressly permitted hereunder pursuant to Section 11.2.
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“Permitted Securitization” means any receivables financing facility or arrangement in an aggregate amount not to exceed $100,000,000 pursuant to which a Receivables Subsidiary purchases, otherwise acquires or receives a Lien on accounts receivable and Receivables Related Assets of the Borrower or any Subsidiaries and enters into a third party financing thereof on terms that the officers of the Borrower have concluded are customary and market-standard.
“Person” means any natural person, corporation, partnership, trust, limited liability company, association, Governmental Authority, or any other entity, whether acting in an individual, fiduciary or other capacity.
“Plan” means an “employee benefit plan” within the meaning of Section 3(3) of ERISA, maintained for employees of Borrower or any Subsidiary, or with respect to which any Loan Party has an obligation to make contributions on behalf of any of its employees or with respect to which Borrower or any Subsidiary has any liability.
“Platform” means Debt Domain, Intralinks, Syndtrack, DebtX or a substantially similar electronic transmission system.
“Prime Rate” means, for any day, the rate of interest in effect for such day as announced from time to time by Agent as its prime rate (whether or not such rate is actually charged by Agent), which is not intended to be Agent’s lowest or most favorable rate of interest at any one time. Agent may make commercial loans or other loans at rates of interest at, above or below the Prime Rate. Any change in the Prime Rate announced by Agent shall take effect at the opening of business on the day specified in the public announcement of such change; provided that Agent shall not be obligated to give notice of any change in the Prime Rate.
“Pro Forma Compliance” means that Borrower is in compliance on a pro forma basis with the applicable covenant, ratio, calculation or requirement herein calculated as if such transaction or event and the related adjustments set forth below had occurred on the first day of the Computation Period most recently ended for which financial statements have been delivered pursuant to Section 10.1(b). The following related adjustments shall be calculated as follows: (i) income statement items (whether positive or negative) attributable to the applicable property or Person the subject of an acquisition, sale, transfer or other disposition of all or substantially all of the Capital Securities in any Subsidiary or any division or product line of Borrower or any Subsidiary, shall be included, (ii) any retirement, incurrence or assumption of any Indebtedness by Borrower or any Subsidiary in connection with a transaction shall be deemed to have borne interest (a) in the case of fixed rate Indebtedness, at the rate applicable thereto, or (b) in the case of floating rate Indebtedness, at the rates which were or would have been applicable thereto during the period when such Indebtedness was or was deemed to be outstanding.
“Pro Rata Share” means with respect to a Lender’s obligation to make Loans and receive payments of principal, interest, fees, costs, and expenses with respect thereto, (x) prior to the Revolving Commitment and Term Loan Commitment being terminated or reduced to zero, the percentage obtained by dividing (i) such Lender’s Revolving Commitment and Term Loan Commitment, by (ii) the aggregate Revolving Commitments and Term Loan Commitments of all Lenders and (y) from and after the time the Revolving Commitment and Term Loan Commitment has been terminated or reduced to zero, the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Lender’s Revolving Outstandings (after settlement and repayment of all Swing Line Loans by the Lenders) and such unpaid portion of the Term Loan attributed to such Lender by (ii) the aggregate unpaid principal amount of all Revolving Outstandings and the Term Loan.
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“Receivables Related Assets” means any other assets that are customarily transferred, sold and/or pledged or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and any collections or proceeds of any of the foregoing (including, without limitation, lock-boxes, deposit accounts, records in respect of such accounts receivable and collections in respect of such accounts receivable); provided, however, Receivables Related Assets shall not include proceeds constituting payments received by Borrower or any Subsidiary from the Receivables Subsidiary in connection with the Permitted Securitization.
“Receivables Subsidiary” means any special purpose, bankruptcy remote Wholly-Owned Subsidiary of the Borrower formed for the sole and exclusive purpose of engaging in activities in connection with the selling and/or financing of trade receivables in connection with and pursuant to a Permitted Securitization and (1) that is designed a “Receivables Subsidiary” by an officer of the Borrower, (2) does not engage in any activities other than Permitted Securitizations and any activity necessary, incidental or related thereto, (3) no portion of the Indebtedness or any other obligation, contingent or otherwise, of which (x) is guaranteed by the Borrower or any other Subsidiary of the Borrower, (y) is recourse to or obligates the Borrower or any other Subsidiary of the Borrower in any way, or (z) subjects any property or asset of the Borrower or any other Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, and (4) with respect to which neither the Borrower nor any other Subsidiary of the Borrower has any obligation to maintain or preserve its financial condition or cause it to achieve certain levels of operating results, other than, in respect of clauses (3) and (4), pursuant to customary representations, warranties, covenants and indemnities entered into in connection with a Permitted Securitization.
“Recipient” means (a) Agent, (b) any Lender, (c) any Issuing Lender, and (d) any Swing Line Lender, as applicable.
“Refunded Swing Line Loan” is defined in Section 2.2(d)(iii).
“Register” is defined in Section 15.7.
“Regulation D” means Regulation D of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Released Person” is defined in Section 15.27.
“Relevant Governmental Body” means the Federal Reserve Board, the Federal Reserve Bank of New York, a committee officially endorsed or convened by either thereof, or any successor thereto.
“Replacement Lender” is defined in Section 8.7(b).
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued thereunder as to which the PBGC has not waived the notification requirement of Section 4043(a), or the failure of a Pension Plan to meet the minimum funding standards of Section 412 of the Code (without regard to whether the Pension Plan is a plan described in Section 4021(a)(2) of ERISA) or under Section 302 of ERISA.
“Required Lenders” means, at any time, Lenders with Pro Rata Shares greater than 50% as determined pursuant to clauses (x) and (y) of the definition of “Pro Rata Share”; provided that the Pro Rata Shares held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
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“Revolving Commitment” means $325,000,000, as increased or reduced from time to time pursuant to Section 2.2(e) or Section 6.1. For the avoidance of doubt, the Swing Line Commitment is a subfacility of the Revolving Commitment.
“Revolving Facility” is defined in the Recitals to this Agreement.
“Revolving Loan” is defined in Section 2.1(a).
“Revolving Loan Availability” means the Revolving Commitment less Revolving Outstandings which shall be based on the Dollar Equivalent.
“Revolving Outstandings” means, at any time, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans, plus (b) the Stated Amount of all Letters of Credit.
“Sanctions” is defined in Section 9.22(b).
“SEC” means the Securities and Exchange Commission or any other Governmental Authority succeeding to any of the principal functions thereof.
“Securities Act” means the United States Securities Act of 1933.
“Senior Officer” means, with respect to any Loan Party, any of the chief executive officer, the chief financial officer, the chief operating officer or the treasurer of such Loan Party.
“SOFR” means, with respect to any SOFR Business Day, a rate per annum equal to the secured overnight financing rate for such SOFR Business Day published by the SOFR Administrator on the SOFR Administrator’s Website.
“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 at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Borrowing” means the SOFR Loans comprising a borrowing of Loans.
“SOFR Business Day” means any day other than a Saturday or Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“SOFR Interest Rate” means, with respect to each day during which interest accrues on a Loan, the rate per annum (expressed as a percentage) equal to (a) Term SOFR for the applicable Term SOFR Interest Period for such day plus the SOFR Spread Adjustment for the applicable Term SOFR Interest Period; or (b) if the then-current Benchmark has been replaced with a Benchmark Replacement pursuant to Section 15.24, such Benchmark Replacement for such day. Notwithstanding the foregoing, the SOFR Interest Rate shall not at any time be less than zero percent (0%) per annum.
“SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR.
“SOFR Margin” is defined in the definition of Applicable Margin.
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“SOFR Spread Adjustment” means 0.10% for a Term SOFR Interest Period of 1 month and 0.15% for a Term SOFR Interest Period of 3 months.
“Specified Event of Default” means an Event of Default arising under any of Section 13.1(a) or 13.1(d).
“Specified Representations” means the representations and warranties contained in Section 9.1, Section 9.2, Section 9.3, Section 9.10, Section 9.12, Section 9.14, Section 9.22, and the representations and warranties in the Guaranty and Collateral Agreement with respect to the creation, validity and perfection of Liens in the Collateral.
“Stated Amount” means, with respect to any Letter of Credit at any date of determination, (a) the maximum aggregate amount available for drawing thereunder under any and all circumstances plus (b) the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit.
“Subordinated Debt” means any unsecured Debt of Borrower and its Subsidiaries which has subordination terms, covenants, pricing and other terms which have been approved in writing by the Agent and is (i) in form materially similar to Exhibit G hereto or (ii) is otherwise approved in writing by the Required Lenders.
“Subordinated Debt Documents” means all documents and instruments relating to the Subordinated Debt and all amendments and modifications thereof approved by Agent.
“Subordination Agreements” means each subordination agreement executed by a holder of Subordinated Debt in favor of the Loan Parties from time to time after the Closing Date in form and substance and on terms and conditions satisfactory to the Agent.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of the Subsidiaries or such first Person and one or more of the Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or Joint Venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of the Subsidiaries or such first Person and one or more of the Subsidiaries (unless such partnership can and does ordinarily take major business actions without the prior approval of such Person or one or more of the Subsidiaries); provided that, for purposes of clarification, no Construction Partnership shall constitute a Subsidiary hereunder. Unless the context otherwise requires or as otherwise stated herein, a Subsidiary means a Subsidiary of the Borrower and/or a Subsidiary of a Subsidiary and Subsidiaries means Subsidiaries of the Borrower and Subsidiaries of the Subsidiaries.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or its Subsidiaries shall be a Swap Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any Swap Agreement or any other contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
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“Swing Line Availability” means the lesser of (a) the Swing Line Commitment and (b) the amount by which the Revolving Loan Availability exceeds Revolving Outstandings at such time.
“Swing Line Commitment” means $30,000,000, as reduced from time to time pursuant to Section 6.1, which commitment constitutes a subfacility of the Revolving Commitment of the Swing Line Lender.
“Swing Line Lender” means CIBC US, in its capacity as lender of Swing Line Loans hereunder, or such other Lender as Borrower may from time to time select as the Swing Line Lender hereunder pursuant to Section 2.2(d), provided that such Lender has agreed to be a Swing Line Lender.
“Swing Line Loan” is defined in Section 2.2(d).
“Tangible Assets” means all assets of the Borrower and the Subsidiaries, calculated in accordance with GAAP, excluding assets that are Intangible Assets.
“Tangible Net Worth” means, for the Borrower and the Subsidiaries, at any date, the Consolidated Net Worth, plus the aggregate amount of Subordinated Debt, less (i) patents, trademarks, copyrights, deferred charges and other Intangible Assets (including, but not limited to, unamortized discounts and expenses, organizational expenses, experimental and developmental expenses, but excluding prepaid expenses); less (ii) all obligations owed by, excluding amounts owed by the Borrower and the Subsidiaries, any Affiliate of the Borrower and the Subsidiaries to the Borrower or any of the Subsidiaries; and less (iii) all loans made by the Borrower and/or the Subsidiaries to such Person’s officers, stockholders, or employees, in each case, determined in accordance with GAAP.
“Target” is defined in the Recitals to this Agreement.
“Taxes” means any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings (including backup withholding), and any and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing, but excluding Excluded Taxes.
“Term Loan” has the meaning assigned such term in Section 2.1(b).
“Term Loan Commitment” means the obligation of each Lender to make a Term Loan not exceeding the amount set forth on Annex A to this Agreement opposite its name thereon under the heading “Term Loan Commitment” or in the Assignment and Assumption or Incremental Term Loan Amendment by which it became a Term Lender, in each case, as such amount may be modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment Agreement or an Incremental Term Loan amendment. As of the Closing Date, the aggregate maximum amount of the Term Loan Commitments of all Lenders is $945,000,000.
“Term Loan Facility” is defined in Section 2.1(b).
“Term SOFR” means, for any calculation with respect to any applicable SOFR Loan for any Term SOFR Interest Period, the greater of (a) the forward-looking term rate based on SOFR for a tenor comparable to such Term SOFR Interest Period that is published by the Term SOFR Administrator two (2) SOFR Business Days prior to the first day of such Term SOFR Interest Period; provided, however, that if as of 5:00 pm (New York City time) on any interest lookback day, Term SOFR for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respct to Term SOFR has not occurred, then Term SOFR will be Term SOFR as published by the Term SOFR Administrator on the first preceding SOFR Business Day for which Term SOFR for such tenor was
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published by the Term SOFR Administrator so long as such first preceding SOFR Business Day is not more than three (3) SOFR Business Days prior to such interest lookback day; and (b) the Floor. Unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 15.24, in the event that a Benchmark Replacement with respect to Term SOFR is implemented, then all references herein to Term SOFR shall be deemed references to such Benchmark Replacement.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of Term SOFR selected by Agent in its reasonable discretion).
“Term SOFR Interest Period” means with respect to that portion of the Loan bearing interest based on Term SOFR, a period of 1 month or 3 months, each to the extent such tenor is an Available Tenor, commencing on a SOFR Business Day as selected by Borrower in accordance with this Agreement, or on such other SOFR Business Day as is acceptable to Agent and Borrower; provided, however, that (a) if any Term SOFR Interest Period would end on a day other than a Business Day, such Term SOFR Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Term SOFR Interest Period shall end on the next preceding Business Day, (b) any Term SOFR Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Term SOFR Interest Period) shall end on the last Business Day of the last calendar month of such Term SOFR Interest Period, (c) no Term SOFR Interest Period shall extend beyond the Termination Date and (d) no tenor that has been removed from this definition pursuant to Section 15.24 shall be available for specification in any borrowing request. For purposes hereof, the date of a Loan or SOFR Borrowing initially shall be the date on which such Loan or SOFR Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan or SOFR Borrowing.
“Termination Date” means the earlier to occur of (a) August 1, 2027, or (b) such other date on which the Commitments terminate pursuant to Section 6 or Section 13.
“Termination Event” means, with respect to a Pension Plan that is subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of Borrower or any other member of the Controlled Group from such Pension Plan during a plan year in which Borrower or any other member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA, (c) the termination of such Pension Plan, the filing of a notice of intent to terminate the Pension Plan or the treatment of an amendment of such Pension Plan as a termination under Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to terminate such Pension Plan or (e) any event or condition that might constitute grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Pension Plan.
“Total Plan Liability” means, at any time, the present value of all vested and unvested accrued benefits under all Pension Plans, determined as of the then most recent valuation date for each Pension Plan, using PBGC actuarial assumptions for single employer plan terminations.
“Transactions” means, collectively, the Merger, the Term Loan Facility, the Revolving Facility and the payment of fees, commissions and expenses in connection with each of the foregoing.
“Type” is defined in Section 2.2(a).
“UCC” is defined in the Guaranty and Collateral Agreement.
“Unencumbered Cash” means all cash and Cash Equivalent Investments owned by the Borrower and the Subsidiaries that are either in deposit accounts or securities accounts, or any combination thereof,
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subject to the exclusive first-priority security interest and Lien of the Agent, for the benefit of the Lenders, or not required to be in such deposit or securities accounts, and in either case (i) not disclosed as restricted cash or restricted Cash Equivalent Investments in the financial statements of the Borrower and the Subsidiaries delivered in accordance with Section 10.1 and (ii) not subject to any Lien other than a Lien in favor of Agent.
“Unfunded Liability” means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Pension Plans exceeds the fair market value of all assets allocable to those benefits, all determined as of the then most recent valuation date for each Pension Plan, using PBGC actuarial assumptions for single employer plan terminations.
“U.S. Tax Compliance Certificate” is defined in Section 7.9(d).
“Wholly-Owned Subsidiary” means, as to any Person, a Subsidiary all of the Capital Securities of which (except directors’ qualifying Capital Securities and shares issued to foreign nationals to the extent required by Applicable Law) are at the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.
(a)Unless otherwise set forth herein, (i) all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial matters (including financial ratios and other financial calculations and financial statements) required to be submitted hereunder shall be prepared in conformity with, GAAP, as in effect from time to time, applied on a consistent basis; provided that financial ratios and calculations that are, by their nature, intended to be “non-GAAP financial metrics” will not be in conformity with GAAP, but their individual components will be; (ii) all computations
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of amounts and ratios shall be made without giving effect to FASB ASC 825 and FASB ASC 470-20 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof; (iii) if any change in GAAP would affect the calculation of any financial ratio or requirement set forth in any Loan Document, and Borrower, Agent or the Required Lenders request, Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change (subject to the approval of the Required Lenders), provided that, until so amended, (A) such ratio or requirement shall continue to be calculated under GAAP prior to such change therein and (B) Borrower shall provide to Agent and Lenders financial statements and other documents required hereunder or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP; and (iv) Any financial ratios required to be maintained by Borrower hereunder shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
(b)With respect to any Computation Period during which any acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction occurs (other than for purposes of Section 11.12) thereafter and on or before the date of determination calculations of the EBITDA to Cash Interest Ratio and Net Senior Debt to EBITDA Ratio shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the most recent Computation Period and on or prior to the date of such computation) as if such acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction had occurred on the first day of the most recent Computation Period, and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of (but without giving effect to any cost synergies or cost savings) and any related incurrence or reduction of Debt, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Debt bears a floating rate of interest and is being given pro forma effect, the interest on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Debt).
(c)In connection with any action taken solely in connection with a Limited Condition Transaction (including any financing thereof), at the Borrower’s written election delivered to the Agent prior to signing the definitive agreements for a Limited Condition Transaction (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), (i) determining compliance with any requirement relating to the absence of a Default or an Event of Default shall be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Determination Date”), and (ii) any calculation of the EBITDA to Cash Interest Ratio, the Net Senior Debt to EBITDA Ratio or any other financial measure, or any amount based on Consolidated EBIT, EBITDA, Net Income, Net Worth, Tangible Assets, Tangible Net Worth or a percentage of Consolidated EBIT or EBITDA, or any other determination under any basket or ratio under this Agreement, as to whether any such Limited Condition Transaction and any related and necessary transaction to consummate the Limited Condition Transaction (including any financing thereof) complies with the covenants or agreements contained in this Agreement (except, in each case, compliance under Section 11.12 (but not Pro Forma Compliance testing as an incurrence matter)), may be made as of the LCT Determination Date; provided that (1) the determinations in clauses (i) and (ii) above shall give pro forma effect to such Limited Condition Transaction and any related and necessary transaction to consummate the Limited Condition Transaction (including any incurrence or discharge of Debt and Liens and the use of proceeds thereof), (2) to the extent the relevant action requires no Default or Event of Default to have occurred, no Default or Event of Default shall exist and be continuing at the time of the LCT Determination Date and no Specified Event of Default
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shall exist and be continuing immediately prior to or immediately after giving effect to such Limited Condition Transaction and (3) compliance with such ratios, baskets or amounts (and any related requirements and conditions) shall not be determined or tested at any time after the LCT Determination Date for such Limited Condition Transaction and any actions or transactions related thereto that is necessary for consummating the Limited Condition Transaction (including any incurrence or discharge of Debt and Liens). For purposes of determining compliance with any ratio, basket or amount on the LCT Determination Date, Cash Interest for purposes of the EBITDA to Cash Interest Ratio will be calculated using an assumed interest rate based on the indicative interest margin contained in any financing commitment documentation with respect to such Debt or, if no such indicative interest margin exists, as mutually determined by the Borrower and the Agent in good faith. For the avoidance of doubt, if the Borrower makes an LCT Election and any of the ratios, baskets or amounts for which compliance was determined or tested as of the LCT Determination Date are exceeded as a result of fluctuations in any such ratio, basket or amount, including due to fluctuations in exchange rates, in EBITDA of the Borrower or the Person subject to such Limited Condition Transaction or any applicable currency exchange rate, at or prior to the consummation of the relevant transaction or action, such ratios, baskets or amounts will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower makes such an election, any subsequent calculation of any such ratio, basket or amount (unless the definitive agreement for, or firm offer in respect of, such Limited Condition Transaction is terminated or expires without its consummation) shall be calculated giving pro forma effect to such Limited Condition Transaction and any related and necessary transaction to consummate the Limited Condition Transaction (including any incurrence or discharge of Debt and Liens).
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provided that after giving effect to any prepayment, conversion or continuation, the aggregate principal amount of each Group of SOFR Loans bearing interest based on Term SOFR shall be at least $5,000,000 and an integral multiple of $1,000,000.
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provided that at any time an Event of Default exists, unless the Required Lenders otherwise consent, the interest rate applicable to each Loan shall be increased by 2% (the “Default Rate”) (and, in the case of Obligations not bearing interest, such Obligations shall bear interest at the Base Rate applicable to Revolving Loans plus 2%), provided further that such increase may thereafter be rescinded by the Required Lenders, notwithstanding Section 15.1. Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 13.1(a) or Section 13.1(d), such increase shall occur automatically. In no event shall interest payable by Borrower to any Lender hereunder exceed the maximum rate permitted under Applicable Law, and if any such provision of this Agreement is in contravention of any such law, such provision shall be deemed modified to limit such interest to the maximum rate permitted under such law.
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Each determination of the applicable Base Rate or SOFR rate by Agent shall be conclusive and binding upon the parties hereto, in the absence of demonstrable error. Agent shall, upon written request of Borrower or any Lender, deliver to Borrower or such Lender a statement showing the computations used by Agent in determining any applicable SOFR rate hereunder.
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If on any day on which the Revolving Commitment is reduced pursuant to Section 6.1 of this Agreement, the Revolving Outstandings plus the outstanding amount of the Swing Line Loans exceeds the Revolving Commitment, Borrower shall immediately first prepay outstanding Revolving Loans and second Cash Collateralize the outstanding Letters of Credit, in an aggregate amount sufficient to eliminate such excess.
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Lender on such date, Agent may assume that such Lender will make the proceeds of such Loan available to Agent on the date of the requested borrowing and Agent may (but shall not be obligated to), in reliance upon such assumption, make available to Borrower the amount of such Loan to be provided by such Lender and such Lender shall be liable to Agent for the amount of such advance. If such Lender does not pay such corresponding amount upon Agent’s demand therefor, Agent will promptly notify Borrower, and Borrower shall promptly pay such corresponding amount to Agent. Agent shall also be entitled to recover from the Lender or Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by Agent to Borrower to the date such corresponding amount is recovered by Agent at a per annum rate equal to (a) from Borrower at the applicable rate for such Loan as provided in Section 4.1 or (b) from a Lender at the Federal Funds Rate. Subject to the terms of this Agreement, Borrower does not waive any claim that it may have against a Defaulting Lender.
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(i)Each Lender that is not a United States person within the meaning of Code Section 7701(a)(30) (a “Non-U.S. Participant”) shall deliver to Borrower and Agent on or prior to the Closing Date (or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender’s entitlement to a complete exemption from, or a reduced rate in, United States federal withholding tax on interest payments to be made hereunder or any Loan. If a Lender that is a Non-U.S. Participant is claiming exemption from withholding on interest pursuant to Code Sections 871(h) or 881(c), the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN or W-8BEN-E, as applicable) a certificate in form and substance reasonably acceptable to Agent (any such certificate, a “U.S. Tax Compliance Certificate”). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Closing Date, (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall deliver to Borrower and Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new U.S. Tax Compliance Certificate, to confirm or establish the entitlement of such Lender or Agent to an exemption from, or reduction in, United States withholding tax on interest payments to be made hereunder or any Loan, or promptly notify Borrower and Agent in writing of its legal inability to do so. If a payment made to a Lender under this Agreement, whether made by any Loan Party or Agent, would be subject to United States federal withholding taxes imposed by FATCA if such Lender 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 shall deliver to Borrower and Agent, at the time or times prescribed by law and at such time or times reasonably requested by Borrower or 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 Borrower or Agent as may be necessary for Borrower and Agent to comply with their applicable obligations under FATCA, to determine that such Lender has or has not complied with the such Recipient’s obligations under FATCA, or to determine the amount to deduct and withhold from such payment.
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or (b) Agent or Required Lenders (by notice to Agent) determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that the SOFR Interest Rate for any requested Term SOFR Interest Period does not adequately and fairly reflect the cost of funding such Loan, Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by Agent to Borrower, any obligation of the Lenders to make or continue SOFR Loans shall be suspended (to the extent of the affected SOFR Loans or the affected Term SOFR Interest Periods) until Agent revokes such notice. Upon receipt of such notice, (i) Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or the affected Term SOFR Interest Periods) or, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Term SOFR Interest Period. Upon any such conversion, Borrower shall also pay any additional amounts required pursuant to Section 8.4.
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To induce Agent and the Lenders to enter into this Agreement and to induce the Lenders to make Loans and participate in Letters of Credit hereunder and the Issuing Lenders to issue Letters of Credit hereunder, Borrower represents and warrants to Agent and the Lenders that:
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any nature whatsoever (including patents, trademarks, trade names, service marks and copyrights), free and clear of all Liens, charges and claims (including infringement claims with respect to patents, trademarks, service marks, copyrights and the like) except as permitted by Section 11.2. No financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except filings evidencing Permitted Liens and filings for which termination statements have been delivered to Agent.
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judicial or docketed administrative or other proceeding, respecting any Environmental Law, Environmental Claim or Hazardous Substance. To Borrower’s knowledge, there are no Hazardous Substances or other conditions or circumstances existing with respect to any property, arising from operations prior to the Closing Date, or relating to any waste disposal, of any Loan Party that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. No Loan Party has any underground storage tanks that are not properly registered or permitted under applicable Environmental Laws or that at any time have released, leaked, disposed of or otherwise discharged Hazardous Substances.
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Until the expiration or termination of the Commitments and thereafter until all Obligations hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated (excluding inchoate indemnity obligations and Letters of Credit that have been Cash Collateralized or back-stopped in a manner reasonably acceptable to the Agent), Borrower agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:
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The Borrower represents and warrants to the Agent and each Lender that the financial statements delivered to the Agent and each Lender at or prior to the execution and delivery of this Agreement and to be delivered at all times thereafter accurately reflect and will accurately reflect the financial condition of the Borrower. The Agent shall have the right at all times during business hours to inspect the books and records of the Borrower and make extracts therefrom.
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computer data, computer programs, journals, orders, receipts, correspondence and other data relating to Inventory, Accounts and any other collateral. All such inspections or audits by Agent shall be at Borrower’s expense; provided that so long as no Default or Event of Default exists, Borrower shall not be required to reimburse Agent for inspections or audits in an amount exceeding $50,000 in the aggregate more frequently than once each Fiscal Year.
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Agent with a first priority Lien on such deposit account, securities account or other account such that after taking account of such new control agreements, Borrower is below the $20,000,000 threshold, and upon the reasonable request of Agent, the applicable Loan Party shall provide bank statements for any such accounts evidencing its compliance. Agent shall be permitted to, during the continuance of an Event of Default, direct any Person party to a deposit account control agreement as the depositary bank to transfer to Agent any funds so deposited on a daily basis or at other times acceptable to Agent for application to the Obligations in accordance with this Agreement.
Until the expiration or termination of the Commitments and thereafter until all Obligations hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated (excluding inchoate indemnity obligations and Letters of Credit that have been Cash Collateralized or back-stopped in a manner reasonably acceptable to the Agent), Borrower agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:
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(i)Debt with respect to a Permitted Securitization.
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(h)Liens securing Debt of a Receivables Subsidiary under a Permitted Securitization.
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any of the Loan Parties (in each case subject to clause (d) of this Section 11.6) sold in the ordinary course of business, (c) obsolete or worn out equipment and (d) sales, transfers, contributions or other dispositions of accounts receivable and Receivables Related Assets to a Receivables Subsidiary only in connection with a Permitted Securitization so long as the aggregate consideration received in each such sale, transfer or other disposition is at least equal to the fair market value of the receivables sold (less discounts given in the ordinary course of business and not for collection purposes) and (e) subject to the following sentence, Asset Dispositions to the extent the aggregate Net Cash Proceeds of such Asset Dispositions does not exceed, in any such Fiscal Year, 20% of the Tangible Assets of the Borrower and the other Loan Parties, as of the end of the immediately preceding Fiscal Year, and to the extent 100% of the consideration for such Asset Dispositions is in cash; provided that, to the extent otherwise meeting the requirements of this clause (e): (1) Net Cash Proceeds from Asset Dispositions which in the event that the assets subject to such Asset Disposition constituted Collateral, such Net Cash Proceeds are reinvested in property, all or substantially all (as determined by the Collateral Agent) of which such property shall be made subject to the Lien of the applicable Collateral Documents in favor of the Collateral Agent or (2) in the event that the assets subject to such Asset Disposition did not constitute Collateral, such Net Cash Proceeds are reinvested in assets similar to the assets which were subject to such Asset Disposition or in property which is otherwise used or useful in the business of the Borrower and the other Loan Parties, and in each case, such property is located within the United States; provided further that, to the extent actually reinvested in such assets or property within the 180-day period after the applicable Asset Disposition or committed to be reinvested within ninety (90) days after the end of such period, such Net Cash Proceeds will be excluded from the calculation of aggregate Net Cash Proceeds in such Fiscal Year. If the net sales proceeds of any asset sales, including the sale of any business, Subsidiary or investment, for any Fiscal Year are greater than 20% of Consolidated Tangible Assets of the Borrower and the Loan Parties, the Borrower shall be required to make prepayments of the Term Loan in accordance with Section 6.2(b) and the Revolving Commitment shall be reduced as set forth in Section 6.1(b).
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provided that any Investment which when made complies with the requirements of the definition of the term “Cash Equivalent Investment” may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements.
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The obligation of each Lender to make its Loans and of the Issuing Lenders to issue Letters of Credit, in each case on the Closing Date, is subject to the following conditions precedent:
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For purposes of the preceding sentence, the term “Credit Bid” shall mean, an offer submitted by Agent (on behalf of the Lender group), based upon the instruction of the Required Lenders, to acquire the property of any Loan Party or any portion thereof in exchange for and in full and final satisfaction of all or a portion (as determined by Agent, based upon the instruction of the Required Lenders) of the claims and Obligations under this Agreement and other Loan Documents.
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elsewhere in this Agreement or in any other Loan Document, Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law regardless of whether a Default has occurred and is continuing. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as otherwise provided in this Section 14, the provisions of this Section 14 are solely for the benefit of Agent, the Lenders and any letter of credit issuing banks hereunder, and Borrower shall not have rights as a third-party beneficiary of any of such provisions.
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Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower or any of Borrower’s Subsidiaries or Affiliates.
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and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders), then such removal shall nonetheless become effective in accordance with such notice on such date.
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relative to any Loan Party, Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to the Lenders, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent under Section 5, Section 15.5 and Section 15.17.
Nothing contained herein shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Agent to vote in respect of the claim of any Lender in any such proceeding.
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aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such designation as to any provision of this Agreement, by the Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, modification, waiver or consent shall (a) extend or increase the Commitment of any Lender without the written consent of such Lender, (b) extend the date scheduled for payment of any principal (excluding mandatory prepayments) of or interest on the Loans or any fees payable hereunder without the written consent of each Lender directly affected thereby, (c) reduce the principal amount of any Loan, the rate of interest thereon or any fees payable hereunder, without the consent of each Lender directly affected thereby (except for periodic adjustments of interest rates and fees resulting from a change in the Applicable Margin as provided for in this Agreement); or (d) release any Guarantor from its obligations under the Guaranty and Collateral Agreement, other than as part of or in connection with any disposition permitted hereunder, or subordinate, or have the effect of subordinating, the Obligations or any Lien securing the Obligations to any other indebtedness or other obligation or release all or substantially all of the Collateral from the Liens under the Collateral Documents (except as permitted by Section 14.11), modify any voting percentages of Lenders, subordinate payment priority of the outstanding Loans under the Revolving Commitment and the Term Loan Commitment and/or subordinate the Liens granted to the Collateral Agent (for the benefit of the Lenders) in the Collateral, modify any provision of the Loan Documents providing for pro rata sharing of payments, change the definition of Required Lenders, any provision of Section 2.6(a)(ii), Section 7.2, or Section 7.5, any provision of this Section 15.1, any provision of Section 13.3 or reduce the aggregate Pro Rata Share required to effect an amendment, modification, waiver or consent, without, in each case set forth in this clause (d), the written consent of all Lenders. No provision of Section 6.2(b) or Section 6.3 with respect to the timing or application of mandatory prepayments of the Loans shall be amended, modified or waived without the consent of Lenders having a majority of the aggregate Pro Rata Shares of the Term Loan Facility affected thereby. No provision of Section 12.2 shall be amended, modified or waived without the consent of the Required Lenders. No provision of Section 14 or other provision of this Agreement affecting Agent in its capacity as such shall be amended, modified or waived without the consent of Agent. No provision of this Agreement relating to the rights or duties of the Issuing Lenders in their capacities as such shall be amended, modified or waived without the consent of the Issuing Lenders. No provision of this Agreement relating to the rights or duties of the Swing Line Lender in its capacity as such shall be amended, modified or waived without the consent of the Swing Line Lender. No provision of this Agreement relating to the rights and duties of any Lender to which Bank Product Obligations are owed (including Hedging Obligations) shall be amended, modified or waived with the consent of such Lender.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, Agent and Borrower (a) other than with respect to increases pursuant to Section 2.2(e) for which Required Lender consent is not required to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loan, the Term Loan Commitment, the Revolving Loans, the Revolving Commitments and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of all Lenders, the consent of the Required Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”), then, so long as Agent is not a Non-Consenting Lender, Borrower may appoint a Replacement Lender pursuant to Section 8.7(b).
Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
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consent that by its terms requires the consent of all the Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders, except that (x) the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loan may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.
In addition, notwithstanding anything in this Section to the contrary, if Agent and Borrower shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then Agent and Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders to Agent within ten (10) Business Days following receipt of notice thereof.
Unless Agent otherwise prescribes, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other
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communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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similar service), if applicable) of this Agreement, the other Loan Documents and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith (including any amendment, supplement or waiver to any Loan Document), whether or not the transactions contemplated hereby or thereby shall be consummated, and all reasonable and documented out-of-pocket costs and expenses (including Attorney Costs and any Taxes) incurred by Agent and each Lender after an Event of Default in connection with the collection of the Obligations or the enforcement of this Agreement the other Loan Documents or any such other documents or during any workout, restructuring or negotiations in respect thereof. In addition, each Loan Party agrees to pay, and to save Agent and the Lenders harmless from all liability for, any fees of Borrower’s auditors in connection with any reasonable exercise by Agent and the Lenders of their rights pursuant to Section 10.2. All Obligations provided for in this Section 15.5 shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit and termination of this Agreement.
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Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in the Loans. The Register shall be available for inspection by Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register. This Section and Section 15.6(b) shall be construed so that the Loans are at all times maintained in “registered form” for the purposes of the Code and any related regulations (and any successor provisions). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
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agreement or other similar agreement between Borrower and Lender conflicts with or contradicts this Section 15.9 with respect to the treatment of confidential information, this section shall supersede all such prior or contemporaneous agreements and understandings between the parties.
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COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, The indemnity DESCRIBED in this Section 15.17 DOES NOT, AND SHALL NOT, apply to Taxes or tax matters (other than, in each case, a tax that is a loss, claim, or damage and that arises from a non-tax claim).
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The following terms shall have the following meanings:
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which
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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).
“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.
“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.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person 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.
“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 any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Support (and any interest and obligation therein or thereunder, and any property rights relating thereto) from such Covered Entity will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime, and (b) if such Covered Entity or a BHC Act Affiliate thereof becomes subject to such a proceeding, Default Rights under the Loan Documents that might otherwise be exercised against such Covered Entity relating to such Supported QFC or any QFC Credit Support are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime.
The following terms shall have the following meanings:
“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.
“Covered Entity” means any of the following: (i) a “covered entity” as defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and interpreted in accordance with, 12 C.F.R. § § 252.81, 47.2 or 382.1 as applicable.
“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).
“U.S. Special Resolution Regimes” means the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
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any Benchmark Conforming Changes. Agent will promptly notify Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to this Section. Any determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 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. Notwithstanding anything to the contrary herein or in any other Loan Document (other than any Hedging Agreement), at any time, (i) if the then-current Benchmark is a term rate (including Term SOFR) 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 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 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 such unavailable or non-representative tenor, and if such tenor is the only tenor specified in such definition, Agent may, in its sole discretion, add an Available Tenor to such definition and implement a Benchmark Replacement Adjustment with respect thereto, and (i) if a tenor that was removed pursuant to clause (a) above either (A) is subsequently displayed on a screen or information service for a Benchmark or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark, then 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. Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans, and any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Term SOFR Interest Period.
The following terms shall have the following meanings:
“Available Tenor” means, as of any date of determination with respect to the then-current Benchmark, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” or similar term pursuant to Section 15.24.
“Benchmark” means, initially, Term SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 15.24.
“Benchmark Conforming Changes” means, with respect to Term SOFR or any Benchmark Replacement, any technical, administrative or operational modifications, supplements, amendments, changes or other conforming changes that Agent decides may be appropriate to reflect the adoption and implementation of Term SOFR or such Benchmark Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or determines that no such market practice exists, in such other manner as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
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“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by Agent for the applicable Benchmark Replacement Date:
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of the 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 for any applicable Available Tenor, 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 Agent giving due consideration to any selection or recommendation by the Relevant Governmental Body, or any evolving or then-prevailing market convention at such time, for determining a spread adjustment, or method for calculating or determining such spread adjustment, for such type of replacement for U.S. dollar-denominated syndicated credit facilities, at such time.
“Benchmark Replacement Date” means a date and time determined by Agent, which date shall be no later than the earlier to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information
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by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official or resolution authority with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution authority, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative. For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 15.24 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 15.24.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by 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 Agent decides that any such convention is not administratively feasible for Agent, then Agent may establish another convention in its reasonable discretion.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
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herein in full. Except as specifically set forth herein, the execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of the Agent, nor constitute a waiver of any provision of the Existing Credit Agreement or any other Loan Document or any other documents, instruments and agreements executed or delivered in connection therewith or of any Default or Event of Default under any of the foregoing whether arising before or after the date hereof or as a result of performance hereunder.
[Signature pages follow]
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The parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.
PRIMORIS SERVICES CORPORATION
By: | /s/ Ken Dodgen | |
Name: | Ken Dodgen | |
Title: | Executive Vice President, Chief Financial Officer | |
Signature Page to Credit Agreement
CIBC BANK USA, as Agent, Joint Bookrunner, Joint Lead Arranger, Collateral Agent, Issuing Lender and as a Lender
By: | /s/ John M. O’Connell | |
Name: | John M. O’Connell | |
Title: | Managing Director | |
Signature Page to Credit Agreement
BANK OF THE WEST, as Joint Bookrunner, Joint Lead Arranger, Co-Documentation Agent, Issuing Lender and as a Lender
By: | /s/ Nabil B. Khoury | |
Name: | Nabil B. Khoury | |
Title: | Managing Director | |
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., as Joint Lead Arranger, Co-Documentation Agent and as a Lender
By: | /s/ Allison W. Connally | |
Name: | Allison W. Connally | |
Title: | Senior Vice President | |
Signature Page to Credit Agreement
FIRST HORIZON BANK, as Joint Lead Arranger, Co-Syndication Agent and as a Lender
By: | /s/ Philip Coote | |
Name: | Philip Coote | |
Title: | Senior Vice President | |
Signature Page to Credit Agreement
REGIONS CAPITAL MARKETS, a division of Regions Bank, as Joint Lead Arranger
By: | /s/ Ed Baran | |
Name: | Ed Baran | |
Title: | Vice President | |
REGIONS BANK, as Co-Syndication Agent and as a Lender
By: | /s/ Claudia Biedenharn | |
Name: | Claudia Biedenharn | |
Title: | Director | |
Signature Page to Credit Agreement
TRUIST BANK, as Co-Documentation Agent and as a Lender
By: | /s/ Katherine Bass | |
Name: | Katherine Bass | |
Title: | Managing Director | |
TRUIST SECURITIES, as Joint Lead Arranger
By: | /s/ Michael Chung | |
Name: | Michael Chung | |
Title: | Managing Director | |
Signature Page to Credit Agreement
CITY NATIONAL BANK, as a Lender
By: | /s/ Brian Myers | |
Name: | Brian Myers | |
Title: | | |
Signature Page to Credit Agreement
FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender
By: | /s/ Zach Femal | |
Name: | Zach Femal | |
Title: | Principal | |
Signature Page to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: | /s/ Catherine Devlin | |
Name: | Catherine Devlin | |
Title: | Vice President | |
Signature Page to Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: | /s/ Jonathan F. Lindvall | |
Name: | Jonathan F. Lindvall | |
Title: | Senior Vice President | |
Signature Page to Credit Agreement
Signature Page to Credit Agreement
ANNEX A
LENDERS AND PRO RATA SHARES
Annex A to Credit Agreement
ANNEX B
ADDRESSES FOR NOTICES
PRIMORIS SERVICES CORPORATION, as Borrower
John M. Perisich
Sr. Vice President/General Counsel
26000 Commercentre Dr.
Lake Forest, CA 92630
Telephone: (949) 454-7110
Facsimile: (949) 595-5544
With a Copy to the following, provided that failure to provide notice to legal counsel shall not be deemed ineffective delivery of notice to the applicable Loan Party:
Shalla Prichard
Gibson, Dunn & Crutcher LLP
811 Main Street
Houston, TX 77002
Telephone: (346) 718-6644
Facsimile: (346) 718-6970
And:
Doug Horowitz
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Telephone: (212) 351-3817
Facsimile: (212) 817-9383
CIBC BANK USA, as Agent, Joint Bookrunner, Joint Lead Arranger, Collateral Agent, Issuing Lender and as a Lender
120 South LaSalle Street
Chicago, Illinois 60603
Attention: John M. O’Connell, Managing Director
Telephone: (312) 569-1239
Email: john.oconnell@cibc.com
With a Copy to the following, provided that failure to provide notice to legal counsel shall not be deemed ineffective delivery of notice to the Agent:
Christine M. Biebel
Perkins Coie LLP
110 N. Wacker Drive, Suite 3400
Chicago, IL 60606-1511
Telephone: (312) 324-8431
Facsimile: (312) 324-9431
Email: cbiebel@perkinscoie.com
Annex B to Credit Agreement
Bank of the West, as Joint Bookrunner, Joint Lead Arranger, Co-Documentation Agent, Issuing Lender and as a Lender
Commercial Banking Group
15165 Ventura Blvd., Suite 220
Sherman Oaks, CA 91403
Attention: Nabil B. Khoury, Managing Director
Telephone: (818) 728-3620
Mobile: (818) 205-3764
Facsimile: (818) 728-3611
Email: nabil.khoury@bankofthewest.com
Bank of america, n.a., as Joint Lead Arranger, Co-Documentation Agent and as a Lender
Global Commercial Banking | Middle Market Group
Bank of America Merrill Lynch
Bank of America, N.A. | BofA Securities, Inc.
One Cowboys Way 5th floor
Frisco, TX 75034
Attention: Sunil Varghese, Senior Vice President | Senior Relationship Manager
Telephone: (469) 294-7173
Mobile: (214) 504-8927
Email: Sunil.Varghese@bofa.com
CITY NATIONAL BANK, as a Lender
National Corporate Banking South
5949 Sherry Lane, Suite 755
Dallas, TX 75225
Attention: Brian Myers, Managing Director
Mobile: (214) 457-4835
Email: brian.myers@cnb.com
FIRST HORIZON BANK, as Joint Lead Arranger, Co-Syndication Agent and as a Lender
601 Poydras Street, Suite 2075
New Orleans, LA 70130
Attention: Philip Coote, Senior Vice President/Commercial Group Manager
Telephone: (504) 310-7371
Mobile: (504) 919-6000
Email: Philip.Coote@firsthorizon.com
FIfth third BANK, NATIONAL ASSOCIATION, as a Lender
5400 LBJ Freeway, Suite 825
MD 1LBJ11
Dallas, TX 75230
Attention: Zach Femal, Assistant Vice President – Corporate Banking
Telephone: (972) 543-1374
Email: Zachary.Femal@53.com
Annex B to Credit Agreement
PNC Bank, NATIONAL ASSOCIATION, as a Lender
PNC Financial Services Group
200 Crescent Court, Suite 400
Dallas, TX 75201
Attention: Randy L. Morrison, Managing Director
Telephone: (469) 778-6858
Mobile: (214) 405-3052
Email: randy.morrison@pnc.com
TRUIST SECURITIES, as Joint Lead Arranger
TRUIST BANK, as Co-Documentation Agent and as a Lender
Truist Securities
2001 Ross Avenue, Suite 2700
Dallas, TX 75201
Attention: Vicount Cornwall, Director | Industrials Investment Banking Portfolio Manager
Telephone: (972) 232-4876
Mobile: (214) 918-4113
Email: vicount.cornwall@truist.com
REGIONS CAPITAL MARKETS, a division of Regions Bank, as Joint Lead Arranger
REGIONS BANK, as Co-Syndication Agent and as a Lender
Regions Bank | Regions Securities LLC
1717 McKinney Ave., Suite 1100
Dallas, TX 75202
Attention: Darren Abrams,
Managing Director | Corporate Banking
Telephone: (469) 608-2715
Mobile: (469) 222-4852
Email: Darren.Abrams@Regions.com
U.S. Bank NATIONAL ASSOCIATION, as a Lender
13737 Noel Rd Suite 800
Dallas, TX 75240
EX-TX-DCRE
Attention: Aaron Loyd, Corporate Banking Relationship Manager
Telephone: (972) 581-1669
Mobile: (214) 998-0549
Email: aaron.loyd@usbank.com
Annex B to Credit Agreement
