DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “2017 Indenture” means that certain Indenture dated April 20, 2017 among the Borrower, certain subsidiaries of the Borrower, as guarantors, and Wilmington Trust, National Association, as Trustee (as in effect on the Closing Date, and as may be amended, restated, supplemented or otherwise modified from time to time in accordance with Section 7.12). “2017 Senior Notes” means the $500,000,000 aggregate principal amount of 6.875% Senior Notes due 2025 issued pursuant to the 2017 Indenture. “Acquired Indebtedness” means Indebtedness (1) of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition of assets from such Person, in each case not incurred by such Person in connection with such Person becoming a Restricted Subsidiary or such acquisition or (3) of a Person at the time such Person merges or amalgamates with or into or consolidates or otherwise combines with the Borrower or any Restricted Subsidiary. Acquired Indebtedness shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets and, with respect to clause (3) of the preceding sentence, on the date of the relevant merger, consolidation, amalgamation or other combination. “Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of either (a) all or any substantial portion of the property of, or a line of business or division of, 1 US-DOCS\146702970.0000000000.7
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person. “Acquisition Consideration” means, with respect to any Permitted Acquisition, the purchase consideration for such Permitted Acquisition and all other payments by the Borrower or any Subsidiary in exchange for, or as part of, or in connection with, such Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, including any and all payments representing the purchase price and any assumptions of Indebtedness, deferred purchase price, Contingent Acquisition Obligations and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person. For purposes of determining the Acquisition Consideration for any Permitted Acquisition, the amount of any Contingent Acquisition Obligations shall be deemed to be the maximum amount thereof in respect of such Permitted Acquisition as specified in the documents relating to such Permitted Acquisition. “Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements, and (b) all costs and expenses incurred in 1 13599552v113599552v2
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquisition Period” means any period commencing on the date that a Material Acquisition is consummated through and including the last day of the fourth (4th) full fiscal quarter following the date on which such acquisition is consummated. “Additional Credit Extension Amendment” means any amendment to this Agreement and, if applicable, the other Loan Documents establishing any Incremental Term Loan Commitment entered into by the Loan Parties and the Administrative Agent pursuant to Section 2.01(b) (which shall not require the consent of any Lender other than each Lender providing a Commitment or Loan thereunder).
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquisition Adjustment Period” means a period elected by Parent Guarantor, such election to be exercised by Parent Guarantor by giving notice to the Administrative Agent, beginning with the funding date of the purchase price for any Specified Acquisition and continuing through the earlier of (a) the last day of the second fiscal quarter next succeeding the fiscal quarter in which such funding date occurred, or (b) Parent Guarantor’s election to terminate such Acquisition Adjustment Period, such election to be exercised by Parent Guarantor giving notice to the Administrative Agent. When an Acquisition Adjustment Period is in effect, the next Acquisition Adjustment Period may not commence until the termination of such Acquisition Adjustment Period then in effect. “Adjusted Consolidated EBITDA” means, for Parent Guarantor and its Subsidiaries for any period, the sum of (a) Consolidated EBITDA for such period plus (b) any Material Project EBITDA Adjustments for such period. “Administrative Agent” means Mizuho in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent. “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Aggregate Commitments” means the Commitments of all the Lenders. 16188091_7
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution. “Affected Loan” has the meaning specified in Section 3.02.
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “A/R Automation Event” means the establishment of an automated system for processing payments from Accounts of the Loan Parties owed by wholesalers or distributors, which automated system (including any testing results thereof conducted by a third party engaged by the Agent) shall be in form and substance satisfactory to the Agent in its Permitted Discretion. “Accelerated Borrowing Base Delivery Event” means any of the following (i) the occurrence and continuance of any Event of Default, or (ii) (x) at any time on or before the Flip Date, (1) the failure of the Borrowers to maintain Availability of at least 17.5% of the Loan Cap or (2) the failure of the Borrowers to maintain Deposited Cash at least equal to $32,000,000 (or such lesser amount as may be agreed to by the Agent in writing in its sole discretion) in the aggregate at any time and (y) at any time after the Flip Date, the failure of the Borrowers to maintain Availability of at least 20% of the Loan Cap.. For purposes of this Agreement, the occurrence of an Accelerated Borrowing Base Delivery Event shall be deemed continuing at the Agent’s option (i) so long as such Event of Default has not been waived, and/or (ii) if the Accelerated Borrowing Base Delivery Event arises as a result of the Borrowers’ failure to achieve Availability or Deposited Cash as required hereunder, until Availability has exceeded 17.5% or 20%, as applicable, of the Loan Cap or Deposited Cash has exceeded $32,000,000 (or such lesser amount as may be agreed to by the Agent in writing in its sole discretion), as applicable, for thirty (30) consecutive calendar days, in which case an Accelerated Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of an Accelerated
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquisition Period” means any period commencing on the date that a Material Acquisition is consummated through and including the last day of the fourth full fiscal quarter following the date on which such acquisition is consummated. “Additional Credit Extension Amendment” means any amendment to this Agreement and, if applicable, the other Loan Documents establishing any Incremental Term Loan Commitment, Extended Term Loan, Extended Revolving Commitment or other Incremental Revolving Commitment of any Class entered into by the Loan Parties and the Administrative Agent pursuant to Section 2.01 (which shall not require the consent of any Lender other than each Lender providing a Commitment or Loan thereunder and, in the case of a Revolving Commitment, each L/C Issuer and each Swing Line Lender). “Additional L/C Issuer Notice” means a notice in substantially the form of Exhibit A-4. “Additional Revolving Commitment” has the meaning specified in Section 2.01(d). “Adjusted Daily Simple SOFR” means, for any day, (a) Daily Simple SOFR for such day plus (b) the Daily Simple SOFR Adjustment; provided that if Adjusted Daily Simple SOFR determined as provided above shall ever be less than zero, then Adjusted Daily Simple SOFR shall be deemed to be zero. “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent Fee Letter” means the fee letter agreement, dated September 23, 2016 among the Company, the Administrative Agent and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. “Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in a form approved (such approval not to be unreasonably withheld, conditioned or delayed) by the Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Contr...
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquiror” has the meaning assigned to such term in the preamble hereto. 1 US-DOCS\127429400.24
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Credit Agreement, the following terms shall have the meanings set forth below: “Acceptable Ground Lease” means a ground lease with respect to any Unencumbered Property executed by a Loan Party, as lessee, (a) that has a remaining lease term (including extension or renewal rights) of at least 30 years, calculated as of the date such Property becomes an Unencumbered Property, (b) that is in full force and effect, (c) that is transferable and assignable either without the landlord’s prior consent or with such consent, which, however, will not be unreasonably withheld or conditioned by landlord, (d) pursuant to which (i) no default or terminating event exists thereunder, and (ii) no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event thereunder, (e) for which a recognition agreement and estoppel certificates, in form and content reasonably satisfactory to Administrative Agent, have been delivered to Administrative Agent, and (f) that is otherwise acceptable to Administrative Agent in its sole discretion. “Adjusted EBITDA” means, (a) EBITDA for the Consolidated Group for the most recently ended Calculation Period minus (b) the aggregate Annual Capital Expenditure Adjustment. “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.02, or such other address or account as Administrative Agent may from time to time notify Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit D-2 or any other form approved by Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person 1
