Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States of America. Drawing Date shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement]. EBITDAR for any period, on a consolidated basis for the Loan Parties (specifically excluding the Excluded Subsidiaries), shall mean the sum of the amounts for such period, without duplication, of (A) Net Income, plus (B) to the extent deducted in determining Net Income, (i) Interest Expense, plus (ii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Net Income, plus (iii) depreciation expense, plus (iv) amortization expense, including, without limitation, amortization of goodwill and other intangible assets (including any impairment charges in respect of intangible assets), plus (v) Transaction Costs, plus (vi) extraordinary losses, plus (vii) non-cash non-recurring expenses and charges (including any impairment charges in respect of tangible assets), plus (viii) Rentals, minus (C) extraordinary gains to the extent included in computing Net Income, for such period determined and consolidated in accordance with GAAP. Environmental Laws shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health from exposure to regulated substances; (iii) protection of the environment and/or natural resources; (iv) employee safety in the workplace; (v) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of regulated substances; (vi) the presence of contamination; (vii) the protection of endangered or threatened species; and (viii) the protection of environmentally sensitive areas. ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. ERISA Affiliate shall mean, at any time, any trade or business (whether or not incorporated) under common control with the Borrowers and are treated as a single employer under Section 414 of the Code. ERISA Event shall mean (a) a reportable event (under Section 4043 of ERISA and regulations thereunder) with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate. ERISA Group shall mean, at any time, the Borrowers and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Borrowers, are treated as a single employer under Section 414 of the Internal Revenue Code. Event of Default shall mean any of the events described in Section 9.1 [Events of Default] and referred to therein as an "Event of Default." Excluded Subsidiaries shall mean (a) Subsidiaries of the Loan Parties which (i) are not organized under the laws of any state of the United States of America, (i) conduct all of their business operations outside of the United States of America and (iii) have, on a collective basis, a net worth of less than ten percent (10%) of the Parent's Consolidated Total Assets and (b) all Permitted Joint Ventures. The Excluded Subsidiaries are not required to join this Agreement as Guarantors or to have their equity pledged to the Administrative Agent for the benefit of the Lenders; provided however, an Excluded Subsidiary may, at the election of the Borrowers, become a Loan Party by, in the case of domestic Excluded Subsidiaries, complying with Section 8.2.9 (ii) of this Agreement and, in the case of foreign Excluded Subsidiaries, having 65% of its equity interest pledged as collateral security for the Obligations. Excluded Taxes shall mean 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, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (a) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 5.6.2 [Replacement of a Lender]) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.9.7 [Status of Lenders], amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient's failure to comply with 5.9.7 [Status of Lenders], and (iv) any U.S. federal withholding Taxes imposed under FATCA (except to the extent imposed due to the failure of the Borrowers to provide documentation or information to the IRS).
Appears in 1 contract
Samples: Revolving Credit Facility Credit Agreement (Finish Line Inc /In/)
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States of America. Drawing Date shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement]. EBITDAR for any period, on a consolidated basis for the Loan Parties (specifically excluding the Excluded Subsidiaries), shall mean the sum of the amounts for such period, without duplication, of (A) Net Income, plus (B) to the extent deducted in determining Net Income, (i) Interest Expense, plus (ii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Net Income, plus (iii) depreciation expense, plus (iv) amortization expense, including, without limitation, amortization of goodwill and other intangible assets (including any impairment charges in respect of intangible assets), plus (v) Transaction Costs, plus (vi) extraordinary losses, plus (vii) non-cash non-recurring expenses and charges (including any impairment charges in respect of tangible assets), plus (viii) Rentals, minus (C) extraordinary gains to the extent included in computing Net Income, for such period determined and consolidated in accordance with GAAP. Environmental Laws shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health from exposure to regulated substances; (iii) protection of the environment and/or natural resources; (iv) employee safety in the workplace; (v) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of regulated substances; (vi) the presence of contamination; (vii) the protection of endangered or threatened species; and (viii) the protection of environmentally sensitive areas. ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. ERISA Affiliate shall mean, at any time, any trade or business (whether or not incorporated) under common control with the Borrowers and are treated as a single employer under Section 414 of the Code. ERISA Event shall mean (a) a reportable event (under Section 4043 of ERISA and regulations thereunder) with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate. ERISA Group shall mean, at any time, the Borrowers and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Borrowers, are treated as a single employer under Section 414 of the Internal Revenue Code. Event of Default shall mean any of the events described in Section 9.1 [Events of Default] and referred to therein as an "Event of Default." Excluded Subsidiaries shall mean (a) Subsidiaries of the Loan Parties which (ia) are not organized under the laws of any state of the United States of America, (ib) conduct conducts all of their business operations outside of the United States of America and (iiic) have, on a collective basis, a net worth of less than ten percent (10%) of the Parent's Consolidated Total Assets and (b) all Permitted Joint Venturesother than Excluded Subsidiaries). The Excluded Subsidiaries are not required to join this Agreement as Guarantors or to have their equity pledged to the Administrative Agent for the benefit of the Lenders; provided however, an Excluded Subsidiary may, at the election of the Borrowers, become a Loan Party by, in the case of domestic Excluded Subsidiaries, complying with Section 8.2.9 (ii) of this Agreement and, in the case of foreign Excluded Subsidiaries, by having 65% of its equity interest pledged as collateral security for the Obligations. Excluded Taxes shall mean any of the following Taxes imposed on or mean, with respect to a Recipient the Administrative Agent, any Lender, the Issuing Lender or required any other recipient of any payment to be withheld made by or deducted from a payment to a Recipienton account of any obligation of the Borrowers hereunder, (ia) Taxes taxes imposed on or measured by its overall net income (however denominated), and franchise Taxestaxes imposed on it (in lieu of net income taxes), and branch profits Taxes, in each case, by the jurisdiction (aor any political subdivision thereof) imposed as a result of such Recipient being organized under the laws of, Laws of which such recipient is organized or having in which its principal office is located or, in the case of any Lender, in which its applicable lending office located inis located, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Borrower is located and (iic) in the case of a Foreign Lender, U.S. federal any withholding Taxes tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or for the account of designates a new lending office) or is attributable to such Lender with respect to an applicable interest in a Loan Foreign Lender's failure or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in such Loan or Commitment inability (other than pursuant to an assignment request by the Borrowers under Section 5.6.2 [Replacement as a result of a Lender]Change in Law) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to comply with Section 5.9.7 5.9.5 [Status of Lenders], except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to such Taxes were payable either withholding tax pursuant to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient's failure to comply with 5.9.7 Section 5.9.1 [Status Payment Free of LendersTaxes], and (iv) any U.S. federal withholding Taxes imposed under FATCA (except to the extent imposed due to the failure of the Borrowers to provide documentation or information to the IRS).
Appears in 1 contract
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States of America. Drawing Date shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement]. EBITDAR for any period, on a consolidated basis for the Loan Parties (specifically excluding the Excluded Subsidiaries), shall mean the sum of the amounts for such period, without duplication, of (A) Net Income, plus (B) to the extent deducted in determining Net Income, (i) Interest Expense, plus (ii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Net Income, plus (iii) depreciation expense, plus (iv) amortization expense, including, without limitation, amortization of goodwill and other intangible assets (including any impairment charges in respect of intangible assets), plus (v) Transaction Costs, plus (vi) extraordinary losses, plus (vii) non-cash non-recurring expenses and charges (including any impairment charges in respect of tangible assets), plus (viii) Rentals, minus (C) extraordinary gains to the extent included in computing Net Income, for such period determined and consolidated in accordance with GAAP. Environmental Laws shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health from exposure to regulated substances; (iii) protection of the environment and/or natural resources; (iv) employee safety in the workplace; (v) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of regulated substances; (vi) the presence of contamination; (vii) the protection of endangered or threatened species; and (viii) the protection of environmentally sensitive areas. ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. ERISA Affiliate shall mean, at any time, any trade or business (whether or not incorporated) under common control with the Borrowers and are treated as a single employer under Section 414 of the Code. ERISA Event shall mean (a) a reportable event (under Section 4043 of ERISA and regulations thereunder) with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate. ERISA Group shall mean, at any time, the Borrowers and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Borrowers, are treated as a single employer under Section 414 of the Internal Revenue Code. Event of Default shall mean any of the events described in Section 9.1 [Events of Default] and referred to therein as an "“Event of Default." ” Excluded Subsidiaries shall mean (a) Subsidiaries of the Loan Parties which (ia) are not organized under the laws of any state of the United States of America, (ib) conduct conducts all of their business operations outside of the United States of America and (iiic) have, on a collective basis, a net worth of less than ten percent (10%) of the Parent's ’s Consolidated Total Assets and (b) all Permitted Joint Venturesother than Excluded Subsidiaries). The Excluded Subsidiaries are not required to join this Agreement as Guarantors or to have their equity pledged to the Administrative Agent for the benefit of the Lenders; provided however, an Excluded Subsidiary may, at the election of the Borrowers, become a Loan Party by, in the case of domestic Excluded Subsidiaries, complying with Section 8.2.9 (ii) of this Agreement and, in the case of foreign Excluded Subsidiaries, by having 65% of its equity interest pledged as collateral security for the Obligations. Excluded Taxes shall mean any of the following Taxes imposed on or mean, with respect to a Recipient the Administrative Agent, any Lender, the Issuing Lender or required any other recipient of any payment to be withheld made by or deducted from a payment to a Recipienton account of any obligation of the Borrowers hereunder, (ia) Taxes taxes imposed on or measured by its overall net income (however denominated), and franchise Taxestaxes imposed on it (in lieu of net income taxes), and branch profits Taxes, in each case, by the jurisdiction (aor any political subdivision thereof) imposed as a result of such Recipient being organized under the laws of, Laws of which such recipient is organized or having in which its principal office is located or, in the case of any Lender, in which its applicable lending office located inis located, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Borrower is located and (iic) in the case of a Foreign Lender, U.S. federal any withholding Taxes tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or for the account of designates a new lending office) or is attributable to such Lender with respect to an applicable interest in a Loan Foreign Lender’s failure or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in such Loan or Commitment inability (other than pursuant to an assignment request by the Borrowers under Section 5.6.2 [Replacement as a result of a Lender]Change in Law) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to comply with Section 5.9.7 5.9.5 [Status of Lenders], except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to such Taxes were payable either withholding tax pursuant to Section 5.9.1 [Payment Free of Taxes]. Executive Order No. 13224 shall mean the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced. Existing Credit Agreement shall mean that certain Credit Agreement by and between certain of the Borrowers, the lenders party thereto and National City Bank of Indiana, as agent dated as of February 25, 2005, as amended. Existing Letters of Credit shall have the meaning assigned to that term in Section 2.9 [Letter of Credit Subfacility]. Expiration Date shall mean, with respect to the Revolving Credit Commitments, March 1, 2013. Facility Fees shall mean the fees referred to in Section 2.4 [Facility Fees]. Federal Funds Effective Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided, if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced. Federal Funds Open Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by the Administrative Agent (for purposes of this definition, an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error); provided however, that if such day is not a Business Day, the Federal Funds Rate for such day shall be the “open” rate on the immediately preceding Business Day. If and when the Federal Funds Rate changes, the rate of interest with respect to any advance to which the Federal Funds Rate applies will change automatically without notice to the Borrowers, effective on the date of any such change. Foreign Lender shall mean any Lender that is organized under the Laws of a jurisdiction other than that in which any Borrower is resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. GAAP shall mean generally accepted accounting principles as are in effect from time to time, subject to the provisions of Section 1.3 [Accounting Principles], and applied on a consistent basis both as to classification of items and amounts; provided, however, that all pro forma financial statements reflecting Acquisitions may include pro forma expense and cost reductions which, in the reasonable and good faith judgment of Parent’s senior management, will result from such Acquisitions; provided, that any such adjustments shall be subject to the approval of Agent in its reasonable judgment. Guarantor shall mean each of the parties to this Agreement which is designated as a “Guarantor” on the signature page hereof and each other Person which joins this Agreement as a Guarantor after the date hereof. Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the Loan Documents in the form of Exhibit 1.1(G)(1). Guaranty of any Person shall mean any obligation of such Person guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business. Guaranty Agreement shall mean the Continuing Agreement of Guaranty and Suretyship in substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of the Guarantors. Hedge Agreements shall have the meaning specified in Section 8.2.14 [Hedging Obligations]. Hedging Obligations of a Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, commodity prices, exchange rates or forward rates applicable to such Lender's assignor immediately before party’s assets, liabilities or exchange transactions, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any of the foregoing. Increasing Lender shall have the meaning assigned to that term in Section 2.11 [Increase in Revolving Credit Commitments]. Indebtedness shall mean, as to any Person at any time, without duplication, such Lender became Person’s (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of property or services, (c) obligations, whether or not assumed, secured by Liens or payable pursuant to an agreement out of the proceeds from the sale of property now or hereafter owned or acquired by such Person, (d) obligations which are evidenced by notes, acceptances, or other instruments, (e) Capitalized Lease Obligations, (f) indebtedness or other obligations of any other Person for borrowed money or for the deferred purchase price of property or services, the payment or collection of which the subject Person has guaranteed (except by reason of endorsement for collection in the ordinary course of business) or in respect of which the subject Person is liable, contingently or otherwise, including, without limitation, liability by way of agreement to provide funds for payment, to supply funds to or otherwise to invest in such other Person, or otherwise to assure a party hereto creditor against loss, (g) reimbursement or other obligations in connection with letters of credit, and (h) obligations in connection with Sale and Leaseback Transactions; provided, that Indebtedness shall not be deemed to include (i) rental expense under any operating lease, (ii) accounts payable arising in the ordinary course of such Lender immediately before it changed its lending officePerson’s business payable on terms customary in the trade, or (iii) Taxes attributable to such Recipient's failure to comply with 5.9.7 [Status of Lenders], and any equity security that is not convertible into Indebtedness (iv) any U.S. federal withholding Taxes imposed under FATCA (except to the extent imposed due to the failure of the Borrowers to provide documentation or information to the IRSincluding preferred stock that is not convertible into Indebtedness).
Appears in 1 contract
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States of America. Dollar Equivalent shall mean, with respect to any amount of any currency, the Equivalent Amount of such currency expressed in Dollars. Domestic Subsidiary shall mean, with respect to any Person, a Subsidiary of such Person, which Subsidiary is incorporated or otherwise organized under the laws of a state of the United States of America or the District of Columbia. Drawing Date shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement]. EBITDAR for any period, on a consolidated basis for the Loan Parties (specifically excluding the Excluded Subsidiaries), shall mean the sum of the amounts for such period, without duplication, of (A) Net Income, plus (B) to the extent deducted in determining Net Income, (i) Interest Expense, plus (ii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Net Income, plus (iii) depreciation expense, plus (iv) amortization expense, including, without limitation, amortization of goodwill and other intangible assets (including any impairment charges in respect of intangible assets), plus (v) Transaction Costs, plus (vi) extraordinary losses, plus (vii) non-cash non-recurring expenses and charges (including any impairment charges in respect of tangible assets), plus (viii) Rentals, minus (C) extraordinary gains to the extent included in computing Net Income, for such period determined and consolidated in accordance with GAAP. Environmental Laws shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health or the environment from exposure to regulated substances; (iii) protection of the environment and/or natural resources; (iv) employee safety in the workplace; (v) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of regulated substances; (vi) the presence of contamination; (vii) the protection of endangered or threatened species; and (viii) the protection of environmentally sensitive areas. Equivalent Amount shall mean, at any time, as determined by the Administrative Agent (which determination shall be conclusive absent manifest error) with respect to an amount of any currency (the “Reference Currency”) which is to be computed as an equivalent amount of another currency (the “Equivalent Currency”), the amount of such Equivalent Currency converted from such Reference Currency, using the average spot rate quoted to the Administrative Agent (based on market rates then prevailing and available to the Administrative Agent) or the commercial market rate of exchange, as determined by the Administrative Agent, for the sale of such Equivalent Currency for such Reference Currency at a time determined by the Administrative Agent on the second Business Day immediately preceding the event for which such calculation is made. ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. ERISA Affiliate shall mean, at any time, any trade or business (whether or not incorporated) under common control with the Borrowers Borrower and are treated as a single employer under Section 414 of the Code. ERISA Event shall mean (a) a reportable event (under Section 4043 of ERISA and regulations thereunder) with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate. ERISA Group shall mean, at any time, the Borrowers Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the BorrowersBorrower, are treated as a single employer under Section 414 of the Internal Revenue Code. Event of Default shall mean any of the events described in Section 9.1 8.1 [Events of Default] and referred to therein as an "“Event of Default." ” Excluded Subsidiaries Taxes shall mean mean, with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Subsidiaries of the Loan Parties which (i) are not organized under the laws of any state of the United States of America, (i) conduct all of their business operations outside of the United States of America and (iii) have, on a collective basis, a net worth of less than ten percent (10%) of the Parent's Consolidated Total Assets and (b) all Permitted Joint Ventures. The Excluded Subsidiaries are not required to join this Agreement as Guarantors or to have their equity pledged to the Administrative Agent for the benefit of the Lenders; provided however, an Excluded Subsidiary may, at the election of the Borrowers, become a Loan Party by, in the case of domestic Excluded Subsidiaries, complying with Section 8.2.9 (ii) of this Agreement and, in the case of foreign Excluded Subsidiaries, having 65% of its equity interest pledged as collateral security for the Obligations. Excluded Taxes shall mean 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, (i) Taxes taxes imposed on or measured by its overall net income (however denominated), franchise Taxesand franchise, and branch profits Taxescapital, gross receipts, or net worth taxes imposed on it (in each caselieu of net income taxes), by any jurisdiction in which the recipient is a resident or by the jurisdiction (aor any political subdivision thereof) imposed as a result of such Recipient being organized under the laws of, Laws of which such recipient is organized or having in which its principal office is located or, in the case of any Lender, in which its applicable lending office located inis located, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (iic) in the case of a Foreign Lender, any U.S. federal withholding Taxes tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or for the account of designates a new lending office) or is attributable to such Lender with respect to an applicable interest in a Loan Foreign Lender’s failure or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in such Loan or Commitment inability (other than pursuant to an assignment request by the Borrowers under Section 5.6.2 [Replacement as a result of a Lender]Change in Law) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to comply with Section 5.9.7 4.11.5 [Taxes – Status of Lenders], except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 4.11.1 [Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto – Payments Free of Taxes]. Executive Order No. 13224 shall mean the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or to such Lender immediately before it changed its lending officeshall hereafter be, (iii) Taxes attributable to such Recipient's failure to comply with 5.9.7 [Status renewed, extended, amended or replaced. Existing Credit Agreement shall mean that certain Credit Agreement dated as of January 28, 2009 by and among the Borrower, the Guarantors, the Lenders], the Administrative Agent, the Syndication Agent, and the Documentation Agent (iv) any U.S. federal withholding Taxes imposed under FATCA (except each as defined therein), as amended by the First Amendment to Credit Agreement dated as of May 13, 2009, the extent imposed due Second Amendment to Credit Agreement dated as of June 29, 2009, the failure Third Amendment to Credit Agreement dated as of July 19, 2010 and the Borrowers Fourth Amendment to provide documentation or information to the IRS)Credit Agreement dated as of November 30, 2010.
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