FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT
Exhibit 10.29
Execution Version
FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT
FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, dated as of March 31, 2023 (this “Amendment”), by and among Xxxxxxxx Industrial Services Group Inc., a Delaware corporation (“Holdings”), Xxxxxxxx Industrial Services Group, L.L.C., a Delaware limited liability company (“WISG”), Xxxxxxxx Industrial Services, LLC, a Georgia limited liability company (“WISI”), Xxxxxxxx Specialty Services, LLC, a Georgia limited liability company (“WSS”), Xxxxxxxx Plant Services, LLC, a Georgia limited liability company (“WPS”), Xxxxxxxx Global Services, Inc., a Georgia corporation (“Global”), Construction & Maintenance Professionals, LLC, a Georgia limited liability company (“Construction”, and together with Holdings, WISG, WISI, WSS, WPS, Global, Construction, each a “Borrower” and, collectively, “Borrower”), Global Power Professional Services Inc. a Delaware corporation (“Power”), GPEG, LLC, a Delaware limited liability company (“GPEG”), Steam Enterprises LLC, a Delaware limited liability company (“Steam”), WISG Canada Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Canada”), WISG Nuclear Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Nuclear”), WISG Electrical Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Electrical”), WISG Electrical, LLC, a New York limited liability company (“WISG Electrical NY”, and together with Power, GPEG, Steam, WISG Canada, WISG Nuclear, and WISG Electrical, each a “Guarantor” and, collectively, “Guarantor”), the Required Lenders, and EICF AGENT LLC, a Delaware limited liability company, as agent on behalf of the Lenders under the Loan Agreement (hereinafter defined) (in such capacity, “Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors and the other Credit Parties from time to time party thereto, the Lenders and the Agent are parties to that certain Term Loan, Guarantee and Security Agreement, dated as of December 16, 2020 (as amended, restated, supplemented or otherwise modified, renewed or replaced from time to time prior to the date hereof, the “Loan Agreement”).
WHEREAS, the Credit Parties have requested, and subject to the terms and conditions set forth below, each of Agent and the Required Lenders hereby agree to amend certain provisions of the Loan Agreement, and, subject to the satisfaction of the conditions to effectiveness set forth herein, the Agent and the Required Lenders are willing to do so, on the terms set forth herein.
NOW THEREFORE, the Borrower, the Credit Parties signatory hereto, the Agent and the Required Lenders each hereby agree as follows:
EXECUTION VERSION
EXECUTION VERSION
EXECUTION VERSION
[Signature pages follow]
EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized officers, all as of the date and year first above written.
AGENT AND LENDERS:
EICF AGENT LLC, as Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
EXECUTION VERSION
ENERGY IMPACT CREDIT FUND I LP,
as a Lender
By: Energy Impact Credit Fund I GP LLC, its general partner
By: /s/ Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title: Managing Partner
EXECUTION VERSION
CION INVESTMENT CORPORATION,
as a Lender
By: /s/ Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title: President & Chief Investment Officer
EXECUTION VERSION
Xxxxxx Xxxx Funding II, LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title: President
EXECUTION VERSION
CROWDOUT CAPITAL LLC, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
Name:Xxxxxxxxx Xxxxxxxxxx
Title:Chief Executive Officer
CROWDOUT CREDIT OPPORTUNITIES FUND LLC, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
Name:Xxxxxxxxx Xxxxxxxxxx
Title:Chief Executive Officer
EXECUTION VERSION
BORROWERS:
Xxxxxxxx Industrial Services Group Inc., as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Senior Vice President, Chief Administrative Officer, General Counsel and Secretary |
XXXXXXXX INDUSTRIAL SERVICES GROUP, L.L.C., as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Secretary |
XXXXXXXX INDUSTRIAL SERVICES, LLC, as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Assistant Secretary |
Xxxxxxxx Specialty Services, LLC, as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Assistant Secretary |
Xxxxxxxx Plant Services, LLC, as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Assistant Secretary |
XXXXXXXX GLOBAL SERVICES, INC., as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Secretary |
EXECUTION VERSION
Construction & Maintenance Professionals, LLC, as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Secretary |
GUARANTORS:
GLOBAL POWER PROFESSIONAL SERVICES INC., as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | President |
GPEG, LLC, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Vice President |
STEAM ENTERPRISES LLC, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | President, |
WISG CANADA LTD., as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Secretary |
WISG NUCLEAR LTD., as Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Chief Financial Officer
EXECUTION VERSION
WISG ELECTRICAL LTD., as Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Chief Financial Officer
WISG ELECTRICAL, LLC, a New York limited liability company, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title: | Secretary |
:
CONFORMED COPY – NOT EXECUTED IN THIS FORM
INCORPORATING FIRST AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF JUNE 30, 2022, SECOND AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF DECEMBER 30, 2022,
THIRD AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF JANUARY 9, 2023 AND FOURTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF FEBRUARY 24, 2023, AND
FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF MARCH 31, 2023
Exhibit A
Marked Loan Agreement
See attached.
TERM LOAN, GUARANTEE AND SECURITY AGREEMENT
DATED AS OF December 16, 2020
AMONG
EICF AGENT LLC,
AS AGENT FOR THE LENDERS SIGNATORY HERETO,
XXXXXXXX INDUSTRIAL SERVICES GROUP INC.,
AS BORROWER
AND
THE OTHER CREDIT PARTIES SIGNATORY HERETO
XXXXXXX AND XXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor
4872-1048-2777
7026289
Table of Contents
Page
Index – page i
Table of Contents
Page
Index – page ii
Table of Contents
Page
Index – page iii
INDEX OF EXHIBITS AND SCHEDULES
Schedule A-Definitions
Schedule B-Schedule of Term Loan Commitments
Schedule C-Agent’s, Xxxxxxx’ and Credit Parties’ Addresses for Notices
Schedule D-Closing Checklist
Schedule E-Restricted Locations
Disclosure Schedule (2)_Capital Providers and Arbitration Proceedings
Disclosure Schedule (2.1(e)(iii))-[Reserved]
Disclosure Schedule (3.2)-Places of Business; Corporate Names
Disclosure Schedule (3.7)-Subsidiaries
Disclosure Schedule (3.9)-Taxes
Disclosure Schedule (3.11)-ERISA
Disclosure Schedule (3.12)-Litigation
Disclosure Schedule (3.13)-Intellectual Property
Disclosure Schedule (3.15)-Environmental Matters
Disclosure Schedule (3.16)-Insurance
Disclosure Schedule (3.18)-Existing Indebtedness
Disclosure Schedule (3.26)-Controlled Accounts
Disclosure Schedule (3.32)-Government Contracts
Disclosure Schedule (3.34)-Bonding; Licensing
Disclosure Schedule (3.35)-Affiliate Transactions
Disclosure Schedule (5.21)-Employee Compensation
Disclosure Schedule (6.1)-Actions to Perfect Liens
Disclosure Schedule (6.5)-Commercial Tort Claims
Exhibit A-Form of Perfection Certificate
Exhibit B-Form of Term Note
Exhibit C-Form of Secretarial Certificate
Exhibit D-Form of Power of Attorney
Exhibit E-Form of Compliance Certificate
Exhibit F-Form of Closing Certificate
Exhibit G-Form of Solvency Certificate
Exhibit H-Form of Joinder Agreement
Exhibit I-Form of Assignment Agreement
Exhibit J-Form of Delayed Draw Borrowing Request
Index – page iv
TERM LOAN, GUARANTEE AND SECURITY AGREEMENT
This TERM LOAN, GUARANTEE AND SECURITY AGREEMENT is dated as of December 16, 2020, and agreed to by and among Xxxxxxxx Industrial Services Group Inc., a Delaware corporation (“Holdings”), Xxxxxxxx Industrial Services Group, L.L.C., a Delaware limited liability company (“WISG”), Xxxxxxxx Industrial Services, LLC, a Georgia limited liability company (“WISI”), Xxxxxxxx Specialty Services, LLC, a Georgia limited liability company (“WSS”), Xxxxxxxx Plant Services, LLC, a Georgia limited liability company (“WPS”), Xxxxxxxx Global Services, Inc., a Georgia corporation (“Global”), Construction & Maintenance Professionals, LLC, a Georgia limited liability company (“Construction”, and together with Holdings, WISG, WISI, WSS, WPS, Global, Construction, each a “Borrower” and, collectively, “Borrower”), Global Power Professional Services Inc. a Delaware corporation (“Power”), GPEG, LLC, a Delaware limited liability company (“GPEG”), Steam Enterprises LLC, a Delaware limited liability company (“Steam”), WISG Canada Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Canada”), WISG Nuclear Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Nuclear”), WISG Electrical Ltd., a limited company formed in the province of British Columbia, Canada (“WISG Electrical”, and together with Power, GPEG, Steam, WISG Canada, WISG Nuclear, each a “Guarantor” and, collectively, “Guarantor”), the other Credit Parties from time to time party hereto, EICF AGENT LLC, a Delaware limited liability company, as agent (in such capacity, “Agent”) for the lenders set forth on Schedule B attached hereto and party hereto (each herein referred to as a “Lender” and collectively, the “Lenders”), CION INVESTMENT CORPORATION, a Delaware corporation (“CION”) as a Lender and as co-lead arranger (in such capacity, the “Co-Lead Arranger”), and the other Lenders from time to time party hereto.
RECITALS
A.The Credit Parties desire that Borrower obtain the Term Loans described herein from the Lenders and the Lenders are willing to provide the Term Loans all in accordance with and subject to the terms and conditions of this Agreement.
B.Capitalized terms used herein shall have the meanings assigned to them in Schedule A and, for purposes of this Agreement and the other Loan Documents, the rules of construction set forth in Schedule A shall govern. All schedules, attachments, addenda and exhibits hereto, or expressly identified to this Agreement, are incorporated herein by reference, and taken together with this Agreement, constitute but a single agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:
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shall immediately and automatically (without the necessity of further action) be reduced in the principal amount of the Closing Date Term Loan made by such Lender.
(b) Delayed Draw Term Loans.
(i) Delayed Draw Term Loans Generally. Subject to the satisfaction of the conditions in this Section 1.1(b) and this Agreement, (x) on the Fourth Amendment Effective Date, by no later than 12:00 PM New York City time on such day, each Fourth Amendment Delayed Draw Term Loan Lender, severally, agrees to lend to Borrower, in one or more advances (each such advance, a “Fourth Amendment Delayed Draw Term Loan” and collectively, the “Fourth Amendment Delayed Draw Term Loans” in a principal amount equal to the Fourth Amendment Delayed Draw Term Loan Commitment of such Fourth Amendment Delayed Draw Term Loan Lender, and (y) upon not less than five (5) Business Days (or such shorter period as Agent may agree in its absolute discretion) after delivery by Borrower to Agent of a Delayed Draw Term Loan Borrowing Request by no later than 1:00 PM New York City time on such day, each Delayed Draw Term Loan Lender may, in its sole and absolute discretion, at any time prior to the Discretionary Delayed Draw Term Loan Commitment Expiration Date, lend to Borrower, in one or more advances (each such advance, a “Discretionary Delayed Draw Term Loan” and collectively, the “Discretionary Delayed Draw Term Loans”, and together with any Fourth Amendment Delayed Draw Term Loans, each a “Delayed Draw Term Loan” and collectively, the “Delayed Draw Term Loans”, and the Delayed Draw Term Loans, together with any Closing Date Term Loans, each, a “Term Loan”, and collectively, the “Term Loans” or the “Loan”) in a principal amount not to exceed the Discretionary Delayed Draw Term Loan Commitment of such Delayed Draw Term Loan Lender; provided further, that each Delayed Draw Term Loan shall be made on a pro rata basis based on the Delayed Draw Term Loan Commitment of each Delayed Draw Term Loan Lender as of the funding date of any Delayed Draw Term Loan relative to the aggregate amount of the Delayed Draw Term Loan Commitments of the other Delayed Draw Term Loan Lenders as of such funding date (or on such other basis as the Delayed Draw Term Loan Lenders all agree); provided further, that, notwithstanding anything to the contrary in the Loan Documents, each Delayed Draw Term Loan Lender shall (unless otherwise directed by Agent in writing, including via e-mail) disburse the proceeds of each Delayed Draw Term Loan made by such Delayed Draw Term Loan Lender to the Borrower directly (and not to the Agent for distribution to the Borrower), provided that each Delayed Draw Term Loan Lender shall provide to Agent any information reasonably requested by Agent regarding any Delayed Draw Term Loan made by a Delayed Draw Term Loan Lender. Xxxxxxxx agrees that each Delayed Draw Term Loan Lender may satisfy any amounts owing to such Lender under the Fee Letters, by deducting such amounts from the proceeds of any Delayed Draw Term Loan made by such Delayed Draw Term Loan Lender to Borrower. The Delayed Draw Term Loan Lenders shall make no more than three (3) Delayed Draw Term Loans in any Fiscal Month. Any Delayed Draw Term Loan shall be in a minimum amount of Five Hundred Thousand Dollars ($500,000) and multiples of One Hundred Thousand Dollars ($100,000) in excess thereof (or such other amount as agreed to by all of the Delayed Draw Term Loan Lenders with a remaining Delayed Draw Term Loan Commitment); provided, that if the remaining Delayed Draw Term Loan Commitments are less than Five Hundred Thousand Dollars ($500,000), then the minimum amount of each Delayed Draw Term Loan shall be the maximum amount of the remaining Delayed Draw Term Loan Commitments. Any Delayed Draw Term Loan Borrowing Request delivered by Borrower hereunder shall be irrevocable and binding on Borrower and shall obligate Borrower to accept the Delayed Draw Term Loans requested from the Delayed Draw Term Loan Lenders on the proposed funding date. The Discretionary Delayed Draw Term Loan Commitments shall reduce to zero automatically on the Discretionary Delayed Draw Term Loan Commitment Expiration Date and no Discretionary Delayed Draw Term Loan shall be made on or after the Discretionary Delayed Draw Term Loan Commitment Expiration Date. The Fourth Amendment Delayed Draw Term Loan Commitments shall reduce to zero automatically after the making of the Fourth Amendment Delayed Draw Term Loans on the Fourth Amendment Effective Date. After the funding of any Delayed Draw Term Loan by a Delayed Draw Term Loan Lender, the Delayed Draw Term Loan Commitment of such Delayed Draw Term Loan Lender shall immediately and automatically (without the necessity of further action) be reduced in the principal amount of the Delayed Draw Term Loan made by such Delayed Draw Term Loan Lender.
(ii) Conditions to Making of Delayed Draw Term Loans. The (x) obligation of each Delayed Draw Term Loan Lender to make any Fourth Amendment Delayed Draw Term Loan is subject to the satisfaction of the following conditions precedent on the relevant funding date, both immediately before and immediately after giving effect to the making of any Fourth Delayed Draw Term Loan, and (y) the making of any Discretionary Delayed Draw Term Loan is subject to each Delayed Draw Term Loan Lender’s sole and absolute discretion and the
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satisfaction of the following conditions precedent on the relevant funding date, both immediately before and immediately after giving effect to the making of any Discretionary Delayed Draw Term Loan:
(A) Agent shall have received a Delayed Draw Term Loan Borrowing Request;
(B) The representations and warranties contained in this Agreement and in each of the other Loan Documents, certificate or other writing delivered to the Agent pursuant thereto are true and correct in all material respects as of the applicable funding date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they are true and correct in all material respects as of such earlier date (except in each case (whether the applicable funding date or such earlier date) to the extent that such representation or warranty is qualified by “Material Adverse Effect” or any other materiality qualifier, in which case it is true and correct in all respects);
(C) no Default or Event of Default exists and is continuing or would result therefrom;
(D) the aggregate Delayed Draw Term Loan Funded Amount of all Delayed Draw Term Loan Lenders would not exceed the aggregate Delayed Draw Term Loan Commitments;
(E) the Delayed Draw Term Loan Funded Amount of any Delayed Draw Term Loan Lender would not exceed such Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment;
(F) Borrower shall certify to Agent, and attach evidence to the Delayed Draw Term Loan Borrowing Request demonstrating, that immediately before and immediately after the making of the requested Delayed Draw Term Loan, the Credit Parties are in compliance on a pro forma basis with the financial covenants set forth under Section 4.2 (based on the financial covenant levels for the testing period then most recently ended or, in the case of any proposed Delayed Draw Term Loan to be made prior to first date on which the financial covenants are tested under Section 4.2, for the period ending on such first date);
(G) the proceeds of the Delayed Draw Term Loan shall only be used for Permitted Acquisitions or working capital of the Credit Parties; and
(H) (1) solely with respect to any Fourth Amendment Delayed Draw Term Loan, Borrower shall have satisfied each condition set forth in Section 4 to the Fourth Amendment, and (2) solely with respect to any Discretionary Delayed Draw Term Loan, Borrower shall (aa) have complied with the provisions of Section 4.5 as of the relevant funding date and (bb) shall use commercially reasonable best efforts to actively receive Net Cash Proceeds from Equity Issuances or Subordinated Debt issuances in an amount equal to at least $500,000 on terms acceptable to the Agent and the Lenders.
Each Delayed Draw Term Loan Borrowing Request submitted by Borrower to Agent shall constitute a representation and warranty by Borrower hereunder, as of the date such Delayed Draw Term Loan is requested to be made, that all of the conditions in this Section 1.1(b) are satisfied. It is understood and agreed that, notwithstanding the Credit Parties meeting the conditions set forth in this Section 1.1(b), the Discretionary Delayed Draw Term Loan facility is an uncommitted facility and the Discretionary Delayed Draw Term Loan Lenders may, in their sole and absolute discretion, elect to not fund any Discretionary Delayed Draw Term Loans for any reason whatsoever.
(c) Principal Repayments of the Term Loans. On each Payment Date occurring on and after April 1, 2024, Borrower shall make principal payments on the Term Loans to the Agent for the pro rata benefit of the Lenders in quarterly installments equal to the sum of (x) $437,500 (such amount being equal to 1.25% of the $35,000,000 aggregate principal amount of the Closing Date Term Loans), plus (y) 1.25% of the aggregate initial principal amounts of all Delayed Draw Term Loans that have been made prior to the applicable Payment Date, which sum shall be payable on the first day of each calendar quarter (each such date, a “Payment Date”). Borrower shall repay the entire outstanding balance of the Loan on the Stated Maturity Date. Amounts repaid or prepaid on any of the Term Loans may not be reborrowed.
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(i) Not later than three (3) Business Days following the receipt of any Net Cash Proceeds from an Arbitration Recovery (such Net Cash Proceeds calculated after giving effect to the payment of all obligations owing by the Borrower to the litigation finance partner pursuant to written agreements between the Borrower and such litigation partner, costs, fees and expenses incurred or payable by the Borrower in connection with the Arbitration Proceeding including, without limitation, all legal costs and disbursements incurred or made by the Borrower in connection with the Arbitration Proceeding), Borrower shall make Mandatory Prepayments of the Obligations to be applied thereto in accordance with Section 1.8 in an aggregate amount equal to 100% of such Net Cash Proceeds; provided, that all such Net Cash Proceeds shall immediately upon receipt by Borrower, prior to the making of any Mandatory Prepayment in accordance with the foregoing, be held in the Term Loan Priority Collateral Account and constitute “Term Loan Priority Collateral” under the Intercreditor Agreement. Any Net Cash Proceeds of an Arbitration Recovery shall immediately upon receipt by Borrower be deposited in the Term Loan Priority Collateral Account and, unless applied as a Mandatory Prepayment in accordance with this Section 1.2(h), remain on deposit in such Term Loan Priority Collateral Account, including (in respect of any prepayment that is declined by any of the Lenders under Section 1.2(i)) in the period (if any) from and after the time any of the Lenders decline a proposed prepayment of such Net Cash Proceeds, subject, until an Activation Notice has been delivered to the applicable depository in respect of the Term Loan Priority Collateral Account, to the Borrower’s right to use those Net Cash Proceeds in accordance with the Loan Documents.
(ii) Not later than three (3) Business Days following the receipt of any Net Cash Proceeds from any Extraordinary Receipts (other than (A) from an Arbitration Recovery, and (B) so long as no Default has occurred and is continuing or would result therefrom, the Proceeds from the Chubb Proceedings and/or the Xxxxxx-Xxxxxx Bankruptcy Proceedings), Borrower shall make Mandatory Prepayments of the Obligations to be applied thereto in accordance with Section 1.8 in an aggregate amount equal to 100% of such Net Cash Proceeds.
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Xxxxxxxx agrees to pay to Agent for the pro rata benefit of the Lenders:
The Borrower agrees that any fees due and payable by the Borrower on the Closing Date, or on the funding date of any Delayed Draw Term Loan, may be satisfied by the Agent, or the Delayed Draw Term Lenders making such Delayed Draw Term Loan, deducting or setting off the amount of such fees from the proceeds of the Term Loan funded to the Borrower on the Closing Date, or on such funding date of a Delayed Draw Term Loan, and by Agent paying such fees to the Persons to whom such fees are owed (or each Lender paying such fees to itself in the case that the Lender funds a Term Loan to the Borrower directly, and not by first funding Agent before a Term Loan is funded to Borrower).
(a) Borrower shall make each payment under this Agreement (not otherwise made pursuant to Section 1.8) without set-off, counterclaim or deduction and free and clear of all Taxes not later than 1:00 PM New York City time on the day when due in lawful money of the United States of America in immediately available funds to an account specified by the Agent in writing, except as required by applicable law. If a Withholding Agent shall be required by applicable law to deduct any Taxes from any payment to any Recipient under any Loan Document, then the applicable Withholding Agent shall be entitled to make such deduction and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased so that, after making all required deductions (including such deductions applicable to additional sums payable under this Section 1.7), the applicable Recipient receives an amount equal to that which it would have received had no such deductions been made. Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Agent timely reimburse it for the payment of, any Other Taxes. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 1.7, Borrower shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.
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(b)If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to Section 1.7(a) or Section 1.10 (including by the payment of additional amounts pursuant to Section 1.7(a)), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under Sections 1.7(a) and Section 1.10 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 1.7(b) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 1.7(b), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 1.7(b) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 1.7(b) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
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ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
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interest rate applicable at the time to the Term Loan. Such repayment shall then constitute the funding of the corresponding Loan (including any Loan deemed to have been made hereunder with such payment) or participation. The existence of any Non-Funding Lender shall not relieve any other Lender of its obligations under any Loan Document, but no other Lender shall be responsible for the failure of any Non-Funding Lender to make any payment required under any Loan Document.
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(with respect to the foregoing clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the 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 affected interest periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing or continuation of, or conversion to, Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable interest period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to this Agreement. Subject to Section 10.17, if the Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Agent without reference to the clause of the definition of “Base Rate” that is based on Adjusted Term SOFR until the Agent revokes such determination.
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(i) Minimum Liquidity. After giving pro forma effect to the Transactions, Liquidity shall be equal to or greater than $7,500,000.
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To induce Agent and the Lenders to enter into this Agreement and to induce the Lenders to make the Loan, Borrower and each other Credit Party executing this Agreement, jointly and severally, represent and warrant to Agent and each Lender (each of which representations and warranties shall survive the execution and delivery of this Agreement), and promise to and agree with Agent and each Lender until the Termination Date as follows:
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business as now, heretofore or proposed to be conducted, and (ii) except as could not, individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect, all licenses, permits, franchises, rights, powers, consents or approvals from or by all Persons or Governmental Authorities having jurisdiction over such Grantor that are necessary or appropriate for the conduct of its business.
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Subordinated Loan Documents has been amended or supplemented, nor have any of the provisions thereof been waived, except pursuant to a written agreement or instrument which has heretofore been delivered to Agent.
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Except as set forth on Disclosure Schedule (3.12), no injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement or any other Loan Document or Transaction Document, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided. As of the Closing Date, except with respect to matters set forth on Disclosure Schedule (3.12), no Credit Party or any Subsidiary of any Credit Party is the subject of an audit or, to each Credit Party’s knowledge, any review or investigation by any Governmental Authority (excluding the IRS and other taxing authorities) concerning the violation or possible violation of any Requirement of Law. Each Grantor shall notify Agent promptly in writing upon having knowledge of the existence, threat or commencement of any Litigation described in subsections (a) and (b) above or any such audit, review or investigation.
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licensed could not reasonably be expected to have a Material Adverse Effect. Each Grantor will take all necessary steps to preserve its ownership and licenses in such Intellectual Property as may be necessary or required to permit Agent to sell, transfer, rent, or use the Collateral upon the occurrence and during the continuation of an Event of Default. To permit Agent to sell, transfer, rent, or use the Collateral upon the occurrence and during the continuation of an Event of Default, each Grantor hereby grants to Agent an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Grantor), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof. As of the Closing Date, the Grantors own or are licensed to use the Intellectual Property as set forth in Disclosure Schedule (3.13). Each Grantor shall maintain the patenting and registration of all Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office or other appropriate Governmental Authority other than with respect to such Intellectual Property that, in the reasonable judgment of such Grantor, is determined to be uneconomical, negligible or obsolete in the conduct of its business. In the event that any Grantor becomes aware that any Intellectual Property material to the conduct of its business has been or is about to be infringed, misappropriated or diluted by a third party in any material respect, such Grantor promptly shall notify the Agent and shall take such actions as are appropriate under the circumstances to protect such Intellectual Property, including, if consistent with good business judgment, promptly suing for infringement, misappropriation or dilution, and to recover any and all damages for such infringement, misappropriation or dilution.
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groundwater, and cause the preparation of such reports, in each case as Agent may from time to time reasonably request. Such audits, assessments and reports, to the extent not conducted by Agent shall be conducted and prepared by reputable environmental consulting firms reasonably acceptable to Agent and shall be in form and substance reasonably acceptable to Agent. Each Credit Party has made available to Agent copies of all existing environmental reports, reviews and audits and all documents prepared since January 1, 2010 pertaining to actual or potential Environmental Liabilities, in each case to the extent such reports, reviews, audits and documents are in their possession, custody, control or otherwise available to the Credit Parties.
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to the extent otherwise permitted under this Agreement and keep the same in good repair, working order and condition, ordinary wear and tear and casualty excepted, and make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with manufacturer specifications and industry practices.
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Borrower and each Guarantor shall maintain a cash management system which is reasonably acceptable to Agent (the “Cash Management System”), which shall operate as follows:
(c) Term Loan Priority Collateral Account. Within thirty (30) days following the Closing Date, Borrower and Guarantors shall establish the Term Loan Priority Collateral Account, and deliver to the Agent an executed control agreement in form and substance satisfactory to Agent under which the Agent is the sole and exclusive controlling agent. Any Net Cash Proceeds of an Arbitration Recovery shall immediately upon receipt by a Credit Party be deposited in the Term Loan Priority Collateral Account and, unless applied as a Mandatory Prepayment in accordance with Section 1.2(h), remain on deposit in such Term Loan Priority Collateral Account, including (in respect of any prepayment that is declined by any of the Lenders under Section 1.2(i)) in the period (if any) from and after the time any of the Lenders decline a
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proposed prepayment of such Net Cash Proceeds subject, until an Activation Notice has been delivered to the applicable depository in respect of the Term Loan Priority Collateral Account, to the Borrower’s right to use those Net Cash Proceeds in accordance with the Loan Documents. Credit Parties shall not deposit in the Term Loan Priority Collateral Account any monies or any other proceeds of Collateral that constitute “Revolving Loan Priority Collateral” (as defined in the Intercreditor Agreement). Credit Parties shall not deposit “Term Loan Priority Collateral” (as defined in the Intercreditor Agreement), or any proceeds thereof, in any account other than the Term Loan Priority Collateral Account.
(d) Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Agent may require in connection with such Blocked Accounts and such Control Agreements. Borrower and Guarantors shall not establish any deposit accounts after the Closing Date into which Proceeds of Collateral are deposited, unless Borrower or such Guarantor has complied in full with the provisions of this Section 3.26 with respect to such deposit accounts, other than Excluded Accounts. Borrower and each Guarantor agrees that from and after the delivery of an Activation Notice (as such term is defined in Section 3.26(e) below) all payments made to such Blocked Accounts or other funds received and collected by Agent or any Lender, whether in respect of the Accounts or as Proceeds of Collateral shall be treated as payments to Agent and the Lenders in respect of the Obligations and therefore shall constitute the property of Agent and the Lenders to the extent of the then outstanding applicable Obligations.
(e) The applicable bank at which any Blocked Accounts are maintained shall agree from and after the receipt of a notice (an “Activation Notice”) from Agent (which Activation Notice may, or upon instruction of the applicable Required Lenders, shall, be given by Agent at any time during an Event of Default) pursuant to the applicable Control Agreement, to forward, daily, all amounts in each Blocked Account to the account designated by Agent from time to time as a collection account (the “Collection Account”).
(f) From and after the delivery of an Activation Notice, Agent shall apply all such funds in the Collection Account on a daily basis to the repayment of the applicable Obligations in accordance with Section 7.4. Notwithstanding the foregoing sentence, after payment in full has been made of the amounts required under Section 7.4, upon the applicable Credit Party’s request and as long as no Default has occurred and is continuing, any additional funds deposited in the Collection Account shall be released to such Credit Party.
(g) Subject to the terms of the Intercreditor Agreement, Borrower, Guarantors and their directors, employees, agents and other Affiliates shall promptly deposit or cause the same to be deposited, any monies, checks, notes, drafts or any other payment relating to and/or Proceeds of Collateral which come into their possession or under their control in the applicable Blocked Accounts, or remit the same or cause the same to be remitted, in kind, to Agent. Xxxxxxxx agrees to reimburse Agent on demand for any amounts owed or paid to any bank at which a Blocked Account is established or any other bank or person involved in the transfer of funds to or from the Blocked Accounts arising out of Agent’s payments to or indemnification of such bank or person.
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The delivery of each certificate, report or any other information delivered pursuant to this Section 3.31 shall constitute a representation and warranty by Borrower that the statements and information contained therein are true and correct in all material respects on and as of the respective dates of such certificates, reports or other information.
(a) On and after the Closing Date, the Credit Parties shall (i) continue to use commercially reasonable efforts to complete the dissolution of Xxxxxx Holdings LLC (“Xxxxxx Holdings”) and Xxxxxx Manufacturing, S.A. de C.V. (Mexico) (“Xxxxxx Mexico”, and together with Xxxxxx Holdings, collectively, the “Xxxxxx Entities”), (ii) prior to or concurrently with any dissolution of any of the Xxxxxx Entities, transfer any assets of the Xxxxxx Entities to the Credit Parties, and (iii) within three (3) Business Days of dissolution of the Xxxxxx Entities provide evidence to Agent that Xxxxxx and Xxxxxx Mexico have been dissolved; and
(b) Within thirty (30) days following the Closing Date, with respect to any Blocked Account maintained by the Credit Parties, the Credit Parties shall deliver to Agent fully executed Control Agreements for each such Blocked Account;
(c) Within thirty (30) days after the Closing Date, Agent shall have received the following insurance endorsements: (i) Lender Loss Payee Endorsement to the property policy ITD100065033720; (ii) Notice of Cancellation Endorsement to the property policy ITD100065033720; (iii) Additional Insured Endorsement to the liability policy 1000090435201; and (iv) Notice of Cancellation Endorsement to the liability policy 1000090435201;
(d) Within ninety (90) days following the Closing Date, the Credit Parties shall use commercially reasonable efforts to provide to Agent a landlord waiver or similar collateral access agreement with respect to the following locations:
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(e) Within ninety (90) days following the Closing Date, the Credit Parties shall deliver to the Agent a filed UCC termination statement evidencing the termination of the UCC financing statement that evidenced the WSS New York tax Lien.
The Credit Parties shall furnish to the Agent and each Lender:
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Documents required to be delivered pursuant to Section 3.31, 4.1(a), (b), (c), (d) or (g), may be delivered electronically to the Agent and Lenders and if so delivered, shall be deemed to have been delivered on the date the Borrower delivers such documents to the Agent and Lenders by electronic mail; provided, that upon written request, Borrower shall deliver paper copies to the Agent and Lenders until a written request to cease delivering paper copies is given by the Agent to the Borrower.
Test Period Ending | Leverage Ratio |
March 31, 2021 – June 30, 2021 | 4.00 to 1.00 |
September 30, 2021 – March 31, 2022 | 3.75 to 1.00 |
June 30, 2022 | 4.50 to 1.00 |
September 30, 2022 | 6.50 to 1.00 |
December 31, 2022 – June 30, 2023 | 4.25 to 1.00 |
September 30, 2023 | 6.25 to 1.00 |
December 31, 2023 | 5.50 to 1.00 |
March 31, 2024 | 5.25 to 1.00 |
June 30, 2024 | 3.25 to 1.00 |
As of the last day of each Fiscal Quarter thereafter | 3.00 to 1.00 |
; provided that for purposes of calculating the Total Leverage Ratio hereunder, the Consolidated EBITDA for the Fiscal Quarter ending June 30, 2020 and September 30, 2020 shall be deemed to be $4,988,638 and $4,053,202, respectively.
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Period | Fixed Charge |
March 31, 2023 – June 30, 2023 | 1.25 to 1.00 |
September 30, 2023 | 1.10 |
As of the last day of each Fiscal Quarter thereafter | 1.25 to 1.00 |
; provided that for purposes of calculating the Fixed Charge Coverage Ratio hereunder, the Consolidated EBITDA for the Fiscal Quarter ending June 30, 2020 and September 30, 2020 shall be deemed to be $4,988,638 and $4,053,202, respectively.
Testing Period | Minimum EBITDA |
1 month ended February 5, 2023 | Negative $162,000 |
2 months ended March 5, 2023 | $177,000 |
3 months ended April 2, 2023 | $818,000 |
4 months ended May 7, 2023 | $1,237,000 |
5 months ended June 4, 2023 | $2,218,000 |
6 months ended July 2, 2023 | $3,261,000 |
7 months ended August 6, 2023 | $4,166,000 |
8 months ended September 3, 2023 | $5,348,000 |
9 months ended October 1, 2023 | $6,495,000 |
10 months ended November 5, 2023 | $7,270,000 |
11 months ended December 3, 2023 | $7,622,000 |
12 months ended December 31, 2023 | $7,882,000 |
Period | Liquidity |
April 19, 2023 – May 2, 2023 | $1,000,000 |
May 3, 2023 – June 6, 2023 | $2,500,000 |
$4,000,000 |
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Borrower and each Credit Party executing this Agreement covenants and agrees (for itself and each other Credit Party) that, without Agent’s prior written consent, from the Closing Date until the Termination Date, neither Borrower nor any other Credit Party shall, directly or indirectly:
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(h) Indebtedness with respect to (i) Capital Lease Obligations existing as the Closing Date set forth in Disclosure Schedule (3.18) and (ii) additional Capital Lease Obligations and Purchase Money Obligations in an aggregate amount outstanding at any time not to exceed $250,000; provided, that any such Capital Lease Obligations and Purchase Money Obligations under this clause (h) shall be secured only by the asset subject to such additional Capital Lease Obligation or the acquired asset in connection with the incurrence of such Capital Lease Obligation or Purchase Money Obligation, as the case may be, any insurance thereon and proceeds thereof, (i) Indebtedness in respect of Hedging Obligations, provided, that, such Hedging Obligations are (or were) entered into by a Credit Party in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Credit Party, or changes in the value of securities issued by such Credit Party, and not for purposes of speculation or taking a “market view”, (j) Indebtedness in respect of letters of credit, bank guarantees and banker’s acceptances in each case incurred in the ordinary course of business, and reimbursement of obligations in respect of any of the foregoing, in all cases to the extent permitted under the Revolving Loan Documents, (k) Indebtedness incurred in the ordinary course of business under surety bonds, performance bonds, completion guarantees, appeal bonds, bid bonds and similar obligations and reimbursement and indemnification obligations in respect of any of the foregoing, (l) Indebtedness in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims, (m) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business, (n) Indebtedness of any Credit Party (other than Inactive Subsidiaries) owing to any other Credit Party (other than Inactive Subsidiaries); provided that in each case, all such Indebtedness shall be (i) evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to this Agreement and (ii) unsecured and subordinated in right of payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement with terms reasonably satisfactory to the Agent, (o) the Existing Letters of Credit, (p) Subordinated Debt under the Subordinated Loan Documents in an original aggregate principal amount not to exceed $1,250,000, plus any fees, costs or expenses incurred or payable in connection therewith, plus any interest accrued thereon in accordance with the terms of the Subordinated Loan Documents, so long as (i) such Indebtedness is subject to a Subordination Agreement which remains in full force and effect and (ii) no Credit Party makes any payment to the Subordinated Creditors or otherwise in respect of such Indebtedness, except for payments made in full compliance with the Subordination Agreement applicable to such Subordinated Debt, and (q) any other unsecured Indebtedness incurred after the Closing Date in an aggregate outstanding amount for all such Credit Parties combined not exceeding $500,000.
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Borrower is a party, such Borrower is the surviving entity of such merger, consolidation or reorganization; (c) a Canadian Credit Party may merge, amalgamate, consolidate or reorganize with another Canadian Credit Party or acquire the assets or Equity Interest of another Canadian Credit Party so long as such Canadian Credit Party shall provide Agent with ten (10) days prior written notice of such merger, amalgamation, consolidation or reorganization; (d) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Credit Party, (e) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Subsidiary; provided that if the transferor in such a transaction is a Credit Party, then the transferee must be a Credit Party, (f) any Credit Party (other than any Inactive Subsidiary) may make Permitted Acquisitions; (g) any Credit Party (other than Inactive Subsidiaries) may make investments in Permitted Joint Ventures existing on the Closing Date, all of which such Permitted Joint Ventures are identified on Schedule 5.3 hereto, and any additional Permitted Joint Ventures formed after the Closing Date so long as not more than seven (7) Permitted Joint Ventures are in existence at any time, provided the aggregate amount of all cash and non-cash investments in Permitted Joint Ventures shall not exceed $1,000,000 in the aggregate outstanding at any one time, and provided further that no new investments in such Permitted Joint Ventures shall be made if any Default or Event of Default then exists; (h) investments in cash and Cash Equivalents; (i) intercompany loans to the extent permitted under Section 5.1; (j) investments made after the Closing Date in any Credit Party; (k) promissory notes and other non-cash consideration received in connection with any disposition of assets permitted by Section 5.4; (l) investments in the form of advances made to subcontractors in the ordinary course of business consistent with historical practice; (m) investments received in settlement of amounts due to any Credit Party effected in the ordinary course of business as a result of insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Credit Party, (n) Stock or other securities acquired in connection with the satisfaction or enforcement of Indebtedness claims due and owing to a Credit Party (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness, (o) to the extent no Default or Event of Default has occurred or would result therefrom, initial capital contribution(s) to any Permitted Captive Insurance Subsidiary in an aggregate amount all such Permitted Captive Insurance Companies not to exceed $250,000 and (p) investments not otherwise permitted pursuant to this Section 5.3 in an aggregate amount not to exceed $500,000 at any time outstanding; provided that immediately before and after giving effect to such investments, no Default or Event to Default shall have occurred or be continuing.
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unwind any Hedging Agreement in accordance with its terms to the extent such Hedging Agreement is (or was) entered into by a Credit Party in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Credit Party, or changes in the value of securities issued by such Credit Party, and not for purposes of speculation or taking a “market view”, and (xiii) any Grantor may dispose of any property in connection with a Casualty Event, provided that the Net Cash Proceeds thereof shall be applied in accordance with the requirements of Section 1.2(c).
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Obligations (including any such limitation or restriction in the form of any “equal and ratable” clause and any similar Contractual Obligation requiring, when a Lien is granted on any property, another Lien to be granted on such property or any other property), except, for each of clauses (a) and (b) above, (w) pursuant to customary provisions restricting pledges, assignments, subletting or other transfers contained in leases, licenses and similar agreements entered in the ordinary course of business that are not prohibited by this Agreement (provided that such restrictions are limited to the property or assets subject to such leases, licenses, or agreements), (x) pursuant to the Loan Documents, (y) pursuant to the Revolving Loan Documents and (z) limitations on Liens (other than those securing any Obligation) on any property whose acquisition, repair, improvement or construction is financed by Capital Lease Obligations or Purchase Money Indebtedness in reliance upon Section 5.1(b) or (z) set forth in the Contractual Obligations governing such Indebtedness with respect thereto.
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marketability of any real property (whether or not owned by any Credit Party), other than such violations, Environmental Liabilities and effects that could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Without the prior written consent of the Agent in its sole discretion, permit any changes, amendments or modifications to the Capital Provision Documents that would be adverse to the Agent or the Lenders (it being understood and agreed that any amendment of any kind to the Capital Provision Agreement is hereby deemed to be adverse to the Agent and Lenders and shall require the prior written consent of the Agent). The Borrower shall notify Agent promptly after the termination, if any, of the Capital Provision Agreement and Borrower shall promptly terminate (and make filings evidencing the termination of), and/or use commercially reasonable efforts to cause the Capital Providers to terminate (and make filings to evidence the termination of), any Liens that the Capital Providers may have had on the assets of the Borrower, including without limitation the termination of all UCC financing statements made by the Capital Providers in connection with the Capital Provision Agreement, to the extent that Holdings no longer has any obligations under the Capital Provision Agreement.
(c) Without the prior written consent of Agent in its sole discretion, permit any changes, amendments or modifications to the Subordinated Debt Documents in violation of the Subordination Agreement.
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Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
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(A) | in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; |
(B) | executed copies of IRS Form W-8ECI; |
(C) | in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the IRC, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the IRC, a “10 percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the IRC, or a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the IRC (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or |
(D) | to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; |
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Agent in writing of its legal inability to do so.
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and, for each of the items set forth in clauses (i) through (iv) above, each Lender hereby waives and agrees not to assert any right, claim or cause of action it might have against Agent based thereon.
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herein, any such Protective Advances funded by Agent shall be deemed to be Protective Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender with respect to such Protective Advances.
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any Collateral that is sold by a Credit Party in an Asset Sale , lease, transfer or other disposition permitted by the Loan Documents (including pursuant to a valid waiver or consent), (ii) any property subject to a Lien permitted hereunder to secure Purchase Money Obligations, (iii) any Collateral to the extent that Agent is required to release such Lien pursuant to the terms of the Intercreditor Agreement in connection with the exercise by the Revolving Agent of rights and remedies against the Collateral,(iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations pursuant to a transaction permitted by Section 5.3, and (v) all of the Collateral and all Credit Parties, upon the Termination Date. Each Lender hereby directs Agent, and Agent hereby agrees, upon receipt of reasonable advance notice from Xxxxxxxx, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the Liens when and as directed in this Section 9.10.
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and provided, further, that (x)(A) any waiver of any payment applied pursuant to Section 1.8 to, and any modification of the application of any such payment to the Term Loan shall require the consent of the Required Lenders, and (B) any change to the definition of the term “Required Lenders” shall require the consent of the Required Lenders, (y) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of, or any payment to, Agent (or otherwise modify any provision of Section 9 or the application thereof) unless in writing and signed by Agent in addition to any signature otherwise required and (z) the consent of Borrower shall not be required to change any order of priority set forth in Section 1.8.
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information related to the Credit Parties, Agent will retain copies of any such documentation or information necessary to comply with the Investment Company Act of 1940 or other applicable laws.
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The Non-Canadian Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that Agent or any Lender exhaust any right, power or remedy or proceed against Borrower under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations. The Non-Canadian Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Agent or any Lender upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Borrower and Agent or any Lender shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by Agent or any Lender, and the obligations and liabilities of the Non-Canadian Guarantors hereunder shall not be conditioned or contingent upon the pursuit by Agent or any Lender or any other person at any time of any right or remedy against Borrower or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Non-Canadian Guarantors and the successors and assigns thereof, until payment in full of the Guaranteed Obligations and shall inure to the benefit of Agent and the Lenders, and their respective successors and permitted assigns.
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[Remainder of Page Intentionally Left Blank, Next Page is Signature Page]
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IN WITNESS WHEREOF, this Term Loan, Guarantee and Security Agreement has been duly executed as of the date first written above.
Xxxxxxxx Industrial Services Group Inc., as Borrower and Grantor
By:_____________________________
Name:
Title:
XXXXXXXX INDUSTRIAL SERVICES GROUP, L.L.C., as Borrxxxx xxx Grantor
By:_____________________________
Name:
Title:
XXXXXXXX INDUSTRIAL SERVICES, LLC, as Borrower and Grantor
By:_____________________________
Name:
Title:
Xxxxxxxx Specialty Services, LLC, as Borrower and Grantor
By:_____________________________
Name:
Title:
Xxxxxxxx Plant Services, LLC, as Borrower and Grantor
By:_____________________________
Name:
Title:
XXXXXXXX GLOBAL SERVICES, INC. , as Borrower and Grantor
By:_____________________________
Name:
Title:
signature page
term loan, guarantee and security agreement
Construction & Maintenance Professionals, LLC, as Borrower and Grantor
By:_____________________________
Name:
Title:
GLOBAL POWER PROFESSIONAL SERVICES INC., as Guarantor and Grantor
By:_____________________________
Name:
Title:
GPEG, LLC, as Guarantor and Grantor
By:_____________________________
Name:
Title:
STEAM ENTERPRISES LLC, as Guarantor and Grantor
By:_____________________________
Name:
Title:
WISG CANADA LTD., as Guarantor and Grantor
By:_____________________________
Name:
Title:
WISG NUCLEAR LTD., as Guarantor and Grantor
By:_____________________________
Name:
Title:
WISG ELECTRICAL LTD., as Guarantor and Grantor
By:_____________________________
Name:
Title:
signature page
term loan, guarantee and security agreement
EICF AGENT LLC, as Agent for the Lenders
By:
Name:
Title:
ENERGY IMPACT CREDIT FUND I LP, as a Lender
By: Energy Impact Credit Fund I GP LLC, its general partner
By:
Name:
Title:
signature page
term loan, guarantee and security agreement
CION INVESTMENT CORPORATION, as a Lender
By:
Name:
Title:
Xxxxxx Xxxx Funding II, LLC, as a Lender
By:
Name:
Title:
signature page
term loan, guarantee and security agreement
CROWDOUT CAPITAL LLC, as a Lender
By:
Name:
Title:
CROWDOUT CREDIT OPPORTUNITIES FUND LLC, as a Lender
By:
Name:
Title:
signature page
term loan, guarantee and security agreement
Schedule A
Definitions
Capitalized terms used in this Agreement and the other Loan Documents shall have (unless otherwise provided elsewhere in this Agreement or in the other Loan Documents) the following respective meanings:
“Acquisition Consideration” shall mean the purchase consideration for any Permitted Acquisition and all other payments by any Credit Party in exchange for, or as part of, or in connection with, any 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, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, “earn-outs” 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 or business; provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by any Credit Party.
“Act” means the Small Business Investment Act of 1958, as amended and in effect from time to time, and the regulations promulgated thereunder.
“Activation Notice has the meaning set forth in Section 3.26(e).
“Adjusted Term SOFR” shall mean, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than 1.0%, then Adjusted Term SOFR shall be deemed to be 1.0%.
“Advances” shall mean one or more “Advances” (as defined in the Revolving Loan Agreement) made by the lenders under the Revolving Loan Agreement, pursuant to the terms of the Revolving Loan Agreement, in an aggregate principal amount outstanding at any time not exceeding the “Maximum Revolving Advance Amount” (as defined in the Revolving Loan Agreement).
“Affected Lender” has the meaning given to such term in Section 1.14(a).
“Affiliate” means, with respect to any Person: (i) each other Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, ten percent (10%) or more of the Stock having ordinary voting power for the election of directors of such Person or (ii) each other Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person. For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means the Person identified as such in the preamble of this Agreement.
“Agreement” means this Agreement including all appendices, exhibits or schedules attached or otherwise identified thereto, restatements and modifications and supplements thereto, and any appendices, exhibits or schedules to any of the foregoing, each as in effect at the time such reference becomes operative; provided, that except as specifically set forth in this Agreement, any reference to the Disclosure Schedules to this Agreement shall be deemed a reference to the Disclosure Schedules as in effect on the Closing Date or in a written amendment thereto delivered by Borrower to Agent.
“Anti-Money Laundering Laws” has the meaning given to such term in Section 3.22.
“Anti-Money Laundering Measures” has the meaning given to such term in Section 3.22.
“Anti-Terrorism Laws” has the meaning given to such term in Section 3.22.
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“Applicable Margin” for any of the Term Loans, from and after January 1, 2023, shall be equal to 11.0% per annum.
“Asset Sale” shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including by way of merger, amalgamation or consolidation and including any sale and leaseback transaction) of any property excluding sales of inventory and dispositions of cash and cash equivalents, in each case, in the ordinary course of business, by any Credit Party and (b) any issuance or sale of any Equity Interests of any Credit Party, in each case, to any Person other than (i) Borrower, (ii) any other Credit Party or (iii) other than for purposes of Section 5.4, any other Subsidiary.
“Assignee” has the meaning given to such term in Section 8(a).
“Assignment Agreement” has the meaning given to such term in Section 8(a).
“Attributable Indebtedness” shall mean, when used with respect to any sale and leaseback transaction, as at the time of determination, the present value (discounted at a rate equivalent to the applicable Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such sale and leaseback transaction.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) 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 (y) 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 or interest period for such Benchmark that is not being used pursuant to Section 10.17(D). As of the date of this Agreement, the only Available Tenors are (a) for SOFR Loans, Adjusted Term SOFR based on Term SOFR with an interest period of 3 months, and (b) for Base Rate Loans under clause (d) of the definition of Base Rate, Adjusted Term SOFR for based on Term SOFR with an interest period of 1 month; provided, that Agent may select to use additional interest periods in accordance with the terms of Section 10.17(D) and such interest periods shall become Available Tenors upon such selection.
“Base Rate” means, as of any date of determination, a variable rate of interest per annum equal to the highest of (a) two percent (2%), (b) the “Prime Rate” as published by the Wall Street Journal as of such date of determination (or, if such rate ceases to be so published, as quoted from such other generally available and recognizable source as Agent may reasonably select), (c) the sum of (i) the Federal Funds Rate plus (ii) one-half of one percent (0.50%), and (d) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00 %.
“Base Rate Loans” means Loans bearing interest at rates determined by reference to the Base Rate.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate 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 10.17.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (x) the alternate benchmark rate that has been selected by the Agent and the Borrower giving due consideration to (1) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (2) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities and (y) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than 1.00% per annum, the Benchmark Replacement will be deemed to be 1.00% per annum for the purposes of this Agreement and the other Loan Documents.
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“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower giving due consideration to (x) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar- denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest 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 non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. |
“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 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 with jurisdiction over the administrator for such Benchmark (or such component), a 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 over the administrator for such Benchmark (or such component), 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 not, or as of a specified future date will not 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).
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“Benchmark Transition Start Date” means in the case of a Benchmark Transition Event, the earlier of (1) the applicable Benchmark Replacement Date and (2) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, the period, if any, (x) beginning at the time that such Benchmark Replacement Date 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 10.17 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document pursuant to Section 10.17.
“Blocked Accounts” has the meaning given to such term in Section 3.26(a).
“Board of Directors” means, with respect to any Person, (i) in the case of any corporation or unlimited liability corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the sole member or manager or the board of managers of such Person, (iii) in the case of any partnership, the board of directors or the board of managers, as applicable, of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Books and Records” means all books, records, board minutes, contracts, licenses, insurance policies, environmental audits, business plans, files, computer files, computer discs and other data and software storage and media devices, accounting books and records, financial statements (actual and pro forma), filings with Governmental Authorities and any and all records and instruments relating to the Collateral or each Grantor’s business.
“Borrower” means the Persons identified as such in the preamble of this Agreement.
“Borrowing Availability” means the amounts available to be borrowed under Section 2.1(a) of the Revolving Credit Agreement as in effect on the date hereof without giving effect to any amendments or modifications thereto after the date hereof.
“Borrowing Base Certificate” (and the definitions used in such term) shall have the meaning ascribed thereto in the Revolving Credit Agreement as in effect on the date hereof without giving effect to any amendments or modifications thereto after the date hereof, except to the extent permitted by the Intercreditor Agreement.
“Xxxxxx” shall mean Xxxxxx Holdings, LLC, a Delaware limited liability company.
“Xxxxxx Mexico” shall mean Xxxxxx Manufacturing SA de CV, a company formed under the laws of Mexico.
“BSA” has the meaning given to such term in Section 3.22.
“Business Day” means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York.
“Canadian Credit Party” means WISG Canada, WISG Nuclear, WISG Electrical and each other Credit Party joined hereto from time to time who is formed or organized under the laws of Canada or any province or territory thereof.
“Canadian AML/Sanction Laws” means Parts II.1, XII.2 and s. 354 of the Criminal Code (Canada), the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Corruption of Foreign Public Officials Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), and the Justice for Victims of Corrupt Foreign Officials Act (Xxxxxx Xxxxxxxxx Law) (Canada), in each case including all regulations promulgated thereunder and as amended from time to time.
“Canadian Insolvency Laws” means any of the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), and any other applicable
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insolvency or other similar law of Canada or any province or territory thereof relating to bankruptcy, insolvency, assignments for the benefit of creditors, formal or informal moratoria, compositions, compromises or extensions generally with creditors, or proceedings seeking reorganization, recapitalization, arrangement, dissolution, liquidation, winding-up or other similar relief (including, without limitation, the Canadian corporate statutes when relied upon in connection with any of the foregoing, unless the reorganization or arrangement does not compromise the claims of creditors).
“Canadian Pension Plan” means each plan, program or arrangement that is a “registered pension plan” as such term is defined under subsection 248(1) of the Income Tax Act (Canada) or is subject to the funding requirements of applicable pension benefits legislation in any Canadian jurisdiction which is maintained, sponsored, administered or contributed to by a Credit Party or Subsidiary thereof.
“Capital Assets” means, with respect to any Person, all equipment, fixed assets and Real Property or improvements of such Person, or replacements or substitutions therefor or additions thereto, that, in accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such Person.
“Capital Expenditures” means, with respect to any Person, all expenditures made directly or indirectly by the Credit Parties during such period for Capital Assets (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a liability).
“Capital Lease” means, with respect to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in accordance with GAAP, either would be required to be classified and accounted for as a capital lease on a balance sheet of such Person or otherwise would be disclosed as such in a note to such balance sheet, other than, in the case of Borrower, any such lease under which Borrower is the lessor; provided, no effect shall be given to any change to GAAP occurring after the Closing Date as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date.
“Capital Lease Obligation” means, of any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as Capital Leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP, without giving effect to any change to GAAP as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date.
“Capital Provision Agreement” means, collectively, (a) that certain Capital Provision Agreement, dated as of September 1, 2020, by and between Holdings and the capital providers thereunder identified on Disclosure Schedule (2) hereof (the “Capital Providers”), pursuant to which the Capital Providers have agreed to extend financing to the Borrower for certain legal proceedings described on Disclosure Schedule (2) hereto (the “Arbitration Proceeding”) and (b) that certain Security Agreement, dated as of September 1, 2020, by and between Holdings, as grantor and the Capital Providers, as secured parties, as each such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“Capital Provision Documents” means the Capital Provision Agreement and each agreement, document or instrument entered into between Holdings and the Capital Providers in connection with the foregoing.
“Captive Insurance Subsidiary” means a wholly-owned Subsidiary of a Credit Party formed after the Closing Date that (a) provides bona fide risk-mitigation services for any Credit Party or the Credit Parties (and no other Persons), (b) is subject to regulation under applicable law as an insurance company, and (c) has been formed, and continues to be
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operated, because the Credit Parties have reasonably determined that either (1) the Credit Parties cannot find a third-party insurer to insure them against particular business risks that the insurance subsidiary provides insurance for, (2) the premiums paid to the insurance subsidiary result in material tax savings for the Credit Parties (taken on a consolidated basis), and/or (3) the insurance provided by the insurance subsidiary is more affordable, and/or offers better coverage (taken as a whole), than is available from a third-party insurer.
“Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States or Canadian federal government or (ii) issued by any agency of the United States or Canadian federal government the obligations of which are fully backed by the full faith and credit of the United States or Canadian federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States or Canadian federal government, any state of the United States, any province or territory of Canada, or any political subdivision of any such state, province or territory or any public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least “P-1” from Xxxxx’x, (c) any commercial paper rated at least “A-1” by S&P or “P-1” by Xxxxx’x and issued by any Person organized under the laws of any state of the United States or under the laws of Canada or any province or territory thereof, (d) any Dollar-denominated or Canadian Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, or under the laws of Canada, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States or Canadian money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a), (b), (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Xxxxx’x the highest rating obtainable for money market funds in the United States or Canada; provided, however, that the maturities of all obligations specified in any of clauses (a), (b), (c) or (d) above shall not exceed 365 days.
“Cash Management System” has the meaning ascribed to such term in Section 3.26(a).
“Casualty Event” shall mean any involuntary loss of title or ownership, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of a Credit Party. “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.
“Change of Control” means any event, transaction or occurrence as a result of which:
(a) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (i) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of Holdings or (ii) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Holdings;
(b) the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Holdings cease to be occupied by Persons who either (i) were members of the board of directors of Holdings on the Closing Date, or (ii) were nominated for election by the board of directors of Holdings, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors;
(c) except with respect to Xxxxxx, Xxxxxx Mexico and any Inactive Subsidiary, in each case, to the extent permitted by this Agreement, the Borrower fails to own 100% (on a fully diluted basis) of the voting and economic interests of the Equity Interests of its Subsidiaries; or
(d) a “Change of Control” or term of similar import shall occur under the Revolving Loan Agreement.
Schedule A - 6
“Charges” means all federal, state, provincial, territorial, county, city, municipal, local, foreign or other governmental taxes (including taxes owed to PBGC at the time due and payable), levies, customs or other duties, assessments, charges, liens, additional charges, interest, penalties, expenses, claims or encumbrances assessed or imposed by any Governmental Authority upon or relating to (i) the Collateral, (ii) the Obligations, (iii) the employees, payroll, income or gross receipts of any Credit Party, (iv) the ownership or use of any assets by any Credit Party, or (v) any other aspect of any Credit Party’s business.
“Chubb Proceedings” means the legal proceedings filed in October, 2020 against Chubb Group of Insurance Companies alleging the failure of Chubb to provide required insurance coverage for the payment of costs and expenses incurred by Holdings in connection with certain shareholder litigation and the prior restatement of its financial statements.
“Chief Executive Office” means the chief executive office of any Credit Party as set forth on Disclosure Schedule 3.2 hereto.
“Closing Certificate” means that certain closing certificate of Borrower delivered to Agent as of the Closing Date in substantially the form of Exhibit F.
“Closing Date” means the Business Day on which the conditions precedent set forth in Section 2 have been satisfied or specifically waived in writing by Agent and the Term Loan has been made.
“Closing Date Term Loan Commitment” means the commitment of each Lender under this Agreement to make or otherwise fund its portion of the Closing Date Term Loan as set forth on Schedule B attached hereto. The aggregate amount of the Closing Date Term Loan Commitments as of the Closing Date is $35,000,000.
“Code” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of this Agreement relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions; provided further, that to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern.
“Collateral” has the meaning assigned to it in Section 6.1.
“Collateral Documents” means, collectively, the Pledge Agreements, the Mortgages, each Control Agreement, and all other U.S. and foreign law security agreements, pledge agreements, patent, trademark and industrial design security agreements, lease assignments, guarantees and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of any Credit Party, any of their respective Subsidiaries or any other Person pledging or granting a Lien on Collateral or guaranteeing the payment and performance of the Obligations, and any Lender or Agent for the benefit of Agent and the Lenders now or hereafter delivered to the Lenders or Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the UCC, PPSA or any other applicable law) against any such Person as debtor in favor of any Lender or Agent for the benefit of Agent and the Lenders, as secured party, as any of the foregoing may be amended, restated and/or modified from time to time.
“Compliance Certificate” means a compliance certificate in the form attached as Exhibit E hereto executed by a Responsible Officer of the Borrower relating to the consolidated financial performance of the Credit Parties.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day,” the definition of “Base Rate” and the definition of “U.S. Government Securities Business Day”, the addition of a concept of “interest period”, timing and
Schedule A - 7
frequency of determining rates and making payments of interest and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of any such rate and to permit the use and 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 if Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Amortization Expense” shall mean, for any period, the amortization expense of the Credit Parties for such period, determined on a consolidated basis in accordance with GAAP.
“Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of the Credit Parties for such period, determined on a consolidated basis in accordance with GAAP.
“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, adjusted by (x) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income and without duplication, the following:
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(y) subtracting therefrom the aggregate amount of all non-cash items increasing Consolidated Net Income (including for certainty all unrealized foreign exchange gains but excluding the accrual of revenue or recording of receivables in the ordinary course of business) for such period.
Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to any Permitted Acquisitions and Asset Sales (other than any dispositions in the ordinary course of business) consummated at any time on or after the first day of the measuring period and prior to the date of determination as if each such Permitted Acquisition had been effected on the first day of such period and as if each such Asset Sale had been consummated on the day prior to the first day of such period.
“Consolidated Fixed Charges” means, for any period, the sum (without duplication) of (a) Consolidated Interest Expense, and (b) the aggregate amount of scheduled principal payments in respect of Indebtedness, including that portion of rental payments with respect to Capital Leases which is or should be applied as a reduction to the principal of such Capital Leases, determined on a consolidated basis for the Credit Parties and their respective Subsidiaries in conformity with GAAP.
“Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate amount of all Indebtedness of the Credit Parties, and all letter of credit exposure of the Credit Parties under the Revolving Loan Agreement, determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” shall mean, for any period, the total consolidated interest expense of the Credit Parties for such period determined on a consolidated basis in accordance with GAAP, excluding upfront financing fees paid under the Fee Letters or under the Revolving Loan Documents, plus, without duplication:
| (a) | imputed interest on Capital Lease Obligations and Attributable Indebtedness of the Credit Parties for such period; |
| (b) | commissions, discounts and other fees and charges owed by any Credit Party with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such period; |
| (c) | amortization of debt issuance costs, debt discount or premium and other financing fees and expenses incurred by any Credit Party for such period; |
| (d) | cash contributions to any employee stock ownership plan or similar trust made by any Credit Party to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than interest paid to Borrower or a wholly-owned Subsidiary of Borrower) in connection with Indebtedness incurred by such plan or trust for such period; |
| (e) | all interest paid or payable with respect to discontinued operations of any Credit Party for such period; |
| (f) | the interest portion of any deferred payment obligations of any Credit Party for such period; |
| (g) | all interest on any Indebtedness of the Credit Parties of the type described in clause (f) or (k) of the definition of “Indebtedness” for such period. |
Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness (other than Indebtedness incurred for ordinary course working capital needs under ordinary course revolving credit facilities) incurred, assumed or permanently repaid or extinguished at any time on or after the first day of the measuring period
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and prior to the date of determination in connection with any Permitted Acquisitions and Asset Sales (other than any dispositions in the ordinary course of business) as if such incurrence, assumption, repayment or extinguishing had been effected on the first day of such period.
“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of the Credit Parties determined on a consolidated basis in accordance with GAAP plus the net income (or loss) of the Permitted Joint Ventures; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:
| (a) | the net income (or loss) of any Person (other than a Subsidiary of any Credit Party), including any Permitted Joint Venture, in which any Person other than a Credit Party or its Subsidiaries also has an ownership interest, except to the extent that cash in an amount equal to any such income has actually been received by such Credit Party or (subject to clause (b) below) any of its Subsidiaries during such period; |
| (b) | the net income of any Subsidiary of any Credit Party during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not permitted by operation of the terms of its Organizational Documents or any agreement, instrument or Requirement of Law applicable to that Subsidiary during such period; |
| (c) | any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by any Credit Party upon any Asset Sale (other than any dispositions in the ordinary course of business) by any Credit Party; |
| (d) | gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such period; |
| (e) | earnings resulting from any reappraisal, revaluation or write-up of assets; |
| (f) | unrealized gains and losses with respect to Hedging Obligations for such period; and |
| (g) | any extraordinary gain (or extraordinary loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by any Credit Party during such period. |
“Consolidated Tax Expense” shall mean, for any period, the tax expense of the Credit Parties, for such period, determined on a consolidated basis in accordance with GAAP.
“Consolidated Working Capital” shall mean, for any period, the working capital (current assets (other than cash and Cash Equivalents) minus current liabilities (other than “Revolving Advances” under the Revolving Loan Agreement and any of Borrower’s current liabilities on such Revolving Advances and current maturities of long term Indebtedness) of the Credit Parties, for such period, determined on a consolidated basis in accordance with GAAP.
“Contingent Obligation” shall mean, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement obligation arises (which reimbursement obligation shall constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may
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be liable, whether singly or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument, or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control Agreement” means a deposit account control agreement and/or lock box agreement among any financial institution at which a Blocked Account is maintained, the Agent and the applicable Credit Party, which shall provide, among other things, that such financial institution executing such agreement has no rights of setoff or recoupment or any other claim against such Blocked Account other than for payment of its service fees and other charges directly related to the administration of such account, and shall give the Agent (i) in the case of Blocked Accounts at offices located in the United States, “control” of such Blocked Account as such term is defined in Section 9-104 of the Code, or (ii) in the case of Blocked Account at offices located in Canada, de facto control of such Blocked Accounts, in each case subject to the terms of the Intercreditor Agreement.
“Copyrights” shall mean all of the following now owned or hereafter adopted or acquired by any Person: (i) all copyrights in any original work of authorship fixed in any tangible medium of expression, now known or later developed, all registrations and applications for registration of any such copyrights in the United States or any other country, including registrations, recordings and applications, and supplemental registrations, recordings, and applications in the United States Copyright Office and the Canadian Intellectual Property Office; and (ii) all Proceeds of the foregoing, including license royalties and proceeds of infringement suits, the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all renewals and extensions thereof.
“Credit Parties” means the Borrower and the Guarantors.
“Debt Issuance” shall mean the incurrence by any Credit Party of any Indebtedness after the Closing Date (other than as permitted by Section 5.1).
“Debtor Relief Laws” means the U.S. Bankruptcy Code, the Canadian Insolvency Laws, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any Event of Default or any event that, with the passage of time or notice or both, would, unless cured or waived, become an Event of Default.
“Default Rate” has the meaning assigned to it in Section 1.5(c).
“Delayed Draw Term Loan” has the meaning assigned to it in Section 1.1(b).
“Delayed Draw Term Loan Borrowing Request” means each Delayed Draw Term Loan Borrowing Request delivered to Agent in substantially the form of Exhibit J pursuant to Section 1.1(b).
“Delayed Draw Term Loan Commitment” means any Discretionary Delayed Draw Term Loan Commitment and any Fourth Amendment Delayed Draw Term Loan Commitment.
“Delayed Draw Term Loan Funded Amount” means, with respect to any Delayed Draw Term Loan Lender at any time, the aggregate principal amount of the Delayed Draw Term Loan funded by such Delayed Draw Term Loan Lender.
“Delayed Draw Term Loan Lender” means any Discretionary Delayed Draw Term Loan Lender and any Fourth Amendment Delayed Draw Term Loan Lender.
“Designated Person” has the meaning assigned to it in Section 3.22(a).
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“Discretionary Delayed Draw Term Loan” has the meaning assigned to it in Section 1.1(b).
“Discretionary Delayed Draw Term Loan Commitment” means the maximum amount, if any, that each Lender under this Agreement may make or otherwise fund as Discretionary Delayed Draw Term Loans, which maximum amount is set forth opposite such Lender’s name on Schedule B or as otherwise documented by such Lender under the Loan Documents, as adjusted from time to time in accordance with this Agreement. The aggregate amount of the Discretionary Delayed Draw Term Loan Commitments as of the Fourth Amendment Effective Date is $3,500,000.
“Discretionary Delayed Draw Term Loan Commitment Expiration Date” means the earliest of (a) the date on which the Discretionary Delayed Draw Term Loan Commitments are terminated and have been reduced to zero (0), (b) the date on which the entire amount of the Discretionary Delayed Draw Term Loan Commitments has been borrowed, or (c) April 30, 2023.
“Discretionary Delayed Draw Term Loan Lender” means each of those certain financial institutions set forth on Schedule B attached hereto that has a Discretionary Delayed Draw Term Loan Commitment as set forth on Schedule B hereto and such other financial institutions that may from time to time make a Discretionary Delayed Draw Term Loan under the Loan Documents, and if at any time any Delayed Draw Term Loan Lender shall decide to assign or syndicate all or any of its Discretionary Delayed Draw Term Loan Commitment subject to Section 8(a) of this Agreement, such term shall include such assignee or such other members of the syndicate.
“Disqualified Capital Stock” shall mean, with respect to any Person, any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the first anniversary of the Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations; provided, however, that any Equity Interests that (x) would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring shall not constitute Disqualified Capital Stock or (y) are issued pursuant to a plan for the benefit of employees of any Credit Party or any of its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations (provided, further, that Credit Parties shall only be permitted to make redemptions and/or repurchases of such Equity Interests in accordance with the terms of Section 5.7).
“Distributions” shall mean, collectively, with respect to each Credit Party, all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity), or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Credit Party in respect of or in exchange for any or all of the Pledged Securities.
“Dollars” or “$” means lawful currency of the United States of America.
“Embargoed Person” means any party that (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published by the OFAC or resides, is organized or chartered in a country or territory subject to OFAC sanctions or embargo programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act, or any other Requirement of Law relating to terrorism, trade sanctions programs and embargoes, money-laundering or bribery.
“Environmental Laws” means all federal, state, provincial, territorial and local laws, statutes, ordinances and regulations, now or hereafter in effect, and in each case as amended or supplemented from time to time, and any
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applicable judicial or administrative interpretation thereof relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation).
“Environmental Liabilities” means all liabilities, obligations, responsibilities, remedial actions, removal costs, losses, damages of whatever nature, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim, suit, action or demand of whatever nature by any Person and which relate to any health or safety condition regulated under any Environmental Law, environmental permits or in connection with any Release, threatened Release, or the presence of a Hazardous Material.
“Equity Interest” shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date hereof or issued after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.
“Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Holdings after the Closing Date of any Equity Interests in Holdings (including any Equity Interests issued upon exercise of any warrant or option) or any warrants or options to purchase Equity Interests or (ii) any contribution to the capital of Holdings; provided, however, that an Equity Issuance shall not include (x) any Preferred Stock Issuance or Debt Issuance, (y) any such sale or issuance by Holdings of not more than an aggregate amount of five percent (5.0%) of its Equity Interests (including its Equity Interests issued upon exercise of any option, warrant, convertible security or option or warrants or options to purchase its Equity Interests but excluding Disqualified Capital Stock), in each case, to directors, officers or employees of any Credit Party and (z) any Excluded Issuance.
“ERISA” means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and any regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414(b), (c), (m) or (o) of the IRC, or, solely for the purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC.
“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as referenced in Section 412 of the IRC or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412 of the IRC or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Credit Party or any ERISA Affiliate of any material liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Credit Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan in an involuntary termination proceeding; (f) the incurrence by any Credit Party or any ERISA Affiliate of any liability with respect to any withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Credit Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Credit Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Event of Default” has the meaning assigned to it in Section 7.1.
“Excess Cash Flow” means, with respect to any period,
(a) the sum of (i) Consolidated EBITDA plus (ii) decreases in Consolidated Working Capital during such period, minus
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(b) the sum of (i) Capital Expenditures (excluding the financed portion thereof and excluding any Capital Expenditures in such Fiscal Year to the extent in excess of the amount permitted to be made in such Fiscal Year pursuant to the Loan Documents), plus (ii) Consolidated Interest Expense paid or accrued (excluding any original issue discount, interest paid in kind or amortized debt discount, to the extent included in Consolidated Interest Expense) and scheduled principal payments paid or payable in respect of funded debt, plus (iii) increases in Consolidated Working Capital during such period; plus (iv) income and franchise taxes of Borrower and its Subsidiaries that were paid in cash during such period; plus or minus (as the case may be)
(c) extraordinary gains or losses for such period which are cash items not included in the calculation of Consolidated Net Income.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Accounts” shall mean (a) any Deposit Account that is used solely for payroll, payroll taxes, other employee wage and benefit payments, or other fiduciary purposes, (b) any Excluded ZBA Disbursement Accounts, and (c) (i) only until and including, but not after, February 1, 2023 (or such later date as agreed to by Agent in its sole discretion), any Excluded Canadian Accounts and the Specified Canadian Account, and (ii) only until and including, but not after, June 30, 2023 (or such later date as agreed to by Agent in its sole discretion), the Specified Canadian Account.
“Excluded Asset” means each of the following assets of a Credit Party (provided, the term Excluded Asset shall not at any time include (x) the Proceeds, products, substitutions or replacements of any such asset or (y) any asset that at any time ceases to satisfy the criteria to constitute an Excluded Asset (whether as a result of any Credit Party obtaining any applicable consent, any regulatory change, or otherwise)):
(a) any leasehold interest in Real Property and any fee-owned Real Property other than Material Owned Real Property;
(b) until such date as all “Secured Obligations” (as such term is defined in the Capital Provision Agreement as in effect as of the Closing Date) have been satisfied in full and the Capital Provision Agreement has been terminated, the “Collateral,” as such term is defined in the Capital Provision Agreement in effect on the Closing Date, in which the Borrower previously has granted a security interest to the Capital Providers in connection with the “Arbitration Proceeding” (as such term is defined in the definition of Capital Provision Agreement); provided, however, it is understood and agreed that in the event any amounts are paid to the Borrower in connection with the Arbitration Proceeding, whether pursuant to an arbitration award, settlement of the Arbitration Proceeding or otherwise (collectively, an “Arbitration Recovery”), the Proceeds of such Arbitration Recovery (calculated after giving effect to the payment of all obligations owing by the Borrower to the litigation finance partner pursuant to written agreements between the Borrower and such litigation finance partner, costs, fees and expenses incurred or payable by the Borrower in connection with the Arbitration Proceeding, including, without limitation, all legal costs and disbursements incurred or made by the Borrower in connection with the Arbitration Proceeding) shall not, for the avoidance of doubt, constitute Excluded Assets and Agent shall have a Lien on such Proceeds; provided, that the priority of any Lien of Agent on such Proceeds shall be subject to the terms of the Intercreditor Agreement;
(c) any lease, license, contract, property right or agreement to which any Credit Party is a party or any of its rights or interests thereunder if and for so long as the grant of the security interest to Agent with respect thereto is prohibited by applicable law; provided that such asset shall no longer be an Excluded Asset immediately at such time the grant of a security interest therein shall no longer be prohibited by applicable law;
(d) property subject to a purchase money security agreement or Capital Lease to the extent and for so long as (i) the documentation providing for such purchase money indebtedness or capital lease prohibits the creation of a lien on such assets or (ii) otherwise requires consent (unless such consent has been obtained (it being understood that there shall be no obligation to obtain such consent)); provided that such assets shall no longer be an Excluded Asset immediately at such time as the contractual prohibition, or consent right, shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such assets that is not subject to such prohibition or consent right,
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(e) any lease, license, contract, property right or agreement to which any Credit Party is a party, in each case in existence on the Closing Date or upon acquisition of the relevant Subsidiary party thereto, or any of its rights or interests thereunder: (i) if and for so long as the grant of the security interest to Agent with respect thereto (A) shall constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of any Credit Party therein, (B) shall constitute or result in a breach, default or termination pursuant to the terms thereof, other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity, or (C) otherwise requires consent thereunder (unless such consent has been obtained (it being understood that there shall be no obligation to obtain such consent)); and (ii) such prohibition, termination right or consent requirement is not entered into in contemplation of the Loan Documents; provided that such asset shall no longer be an Excluded Asset immediately at such time as the condition causing such abandonment, invalidation, unenforceability, breach, default or termination shall be remedied and to the extent severable, shall attach immediately to any portion of such asset that does not result in any of the consequences specified herein;
(f) any “intent-to-use” trademark application, filed pursuant to Section 1(b) of the Xxxxxx Act, 17 USC. § 1051(b), prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto (as each is defined in such act), to the extent, if any, that, and solely during the period, if any, in which, the grant of the security interest of Agent with respect thereto would impair the validity or enforceability of such intent-to-use trademark application or any registration that issues from such intent-to-use application under applicable federal law;
(g) other than as specifically provided in this definition, any asset with respect to which Agent shall have reasonably determined in good faith that the burden or cost of obtaining a security interest in such asset exceeds the practical benefit to the Agent and secured parties of the security to be afforded thereby.
“Excluded Canadian Accounts” means the bank accounts of the Credit Parties with TD Canada Trust with account numbers as previously identified to Agent in writing with account numbers ending 5616, 2137, 1733, 1806, 1865, 1698, 1701, 4948 and 1951.
“Excluded Issuance” shall mean an issuance and sale of Qualified Capital Stock of Holdings, to the extent such Qualified Capital Stock is used, or the Net Cash Proceeds thereof shall be, within forty-five (45) days of the consummation of such issuance and sale, used, without duplication, to finance Capital Expenditures.
“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 its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. or Canadian federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 1.7, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section 8(b); (d) any withholding Taxes imposed under FATCA; and (e) taxes imposed under Part XIII of the Income Tax Act (Canada) on amounts paid by a Canadian Credit Party that arise as a consequence of the recipient of the payment (i) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Canadian Credit Party, (ii) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Canadian Credit Party, or (iii) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Canadian Credit Party.
“Excluded ZBA Disbursement Accounts” has the meaning assigned thereto in Section 3.26(b).
“Executive Orders” has the meaning given to such term in Section 3.22.
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“Existing Letters of Credit” means those letters of credit outstanding as of the Closing Date and set forth on Disclosure Schedule (5.1), issued by Xxxxx Fargo Bank, National Association for the account of Holdings or its Subsidiaries.
“Extraordinary Receipts” means any cash received by or paid to or for the account of any Credit Party not in the ordinary course of business (and not consisting of any Proceeds described in any of Section 1.2(c) through (f)), including Proceeds from the Arbitration Recovery, the Chubb Proceedings and/or the Xxxxxx-Xxxxxx Bankruptcy Proceedings, life insurance proceeds, purchase price and other monetary adjustments made in connection with any Permitted Acquisition or other acquisition permitted under the Loan Documents and/or indemnification payments made in connection with any such Permitted Acquisition or acquisition of substantially all of the assets or Equity Interests of another Person; provided, that Extraordinary Receipt shall exclude (a) working capital adjustments in connection with any such Permitted Acquisition or acquisition, and (b) indemnification payments received by any Credit Party pertaining to any such Permitted Acquisition or acquisition to the extent that the amounts so received are applied (within 90 days after receipt) for the purpose of remedying the condition giving rise to the claim for indemnification.
“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the IRC and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the IRC.
“Fee Letters” has the meaning assigned to it in Section 1.6.
“Fees” means any and all fees due to Agent as set forth in Section 1.6.
“Fifth Amendment” means that certain Fifth Amendment to this Agreement, dated as of March 31, 2023, by and among the Credit Parties, the Agent and the Lenders party thereto.
“Financial Statements” means, with respect to any Person, the income statement, balance sheet and statement of cash flows of such Person, prepared for the time period specified and prepared in accordance with GAAP setting forth in each case in comparative form the figures for such time period the previous year, certified by a Responsible Officer as being fairly stated in all material respects.
“Fiscal Month” means any of the monthly accounting periods of Borrower.
“Fiscal Quarter” means any of the quarterly accounting periods of Borrower.
“Fiscal Year” means the twelve (12) month period of Borrower ending December 31 of each year. Subsequent changes of the fiscal year of Borrower shall not change the term “Fiscal Year” unless Agent shall consent in writing to such change.
“Fixed Charge Coverage Ratio” means, with respect to any Person for any measuring period of twelve (12) Fiscal Months, the ratio of (a) (i) Consolidated EBITDA for such measuring period minus (ii) Capital Expenditures for such measuring period (other than any Capital Expenditures financed by the incurrence of Indebtedness permitted under this Agreement), minus (iii) United States, Canadian, state, provincial, local and foreign taxes paid by such Person in cash during such period, minus (iv) any Restricted Payments to the extent actually made (provided that this clause shall not impair or modify any restriction on the making of a Restricted Payment that is not permitted to be made under this Agreement or the Loan Documents) during such period, minus (v) payments on the Permitted Xxxxxx-Xxxxxx Pension Plan Obligations to the extent actually made (provided that this clause (vi) shall not impair or modify any restriction on the making of a payment that is not permitted to be made under this Agreement or the Loan Documents), minus (vii) investments in Permitted Joint Ventures in accordance with Section 5.3 paid by such Person during such period, to (b) Consolidated Fixed Charges for such measuring period; provided that:
(A) the Consolidated EBITDA for the Fiscal Quarter ending June 30, 2020 and September 30, 2020 shall be deemed to be $4,988,638 and $4,053,202, respectively;
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(B) all amounts under this definition (other than as set forth in clause (A) above) for the trailing twelve (12) Fiscal Month period ending March 31, 2021, shall mean all such amounts during the period from December 31, 2020 to March 31, 2021, multiplied by 4;
(C) all amounts under this definition (other than as set forth in clause (A) above) for the trailing twelve (12) Fiscal Month period ending June 30, 2021, shall mean all such amounts during the period from December 31, 2020 to June 30, 2021, multiplied by 2; and
(D) all amounts under this definition (other than as set forth in clause (A) above) for the trailing twelve (12) Fiscal Month period ending September 30, 2021, shall mean all such amounts during the period from December 31, 2020 to September 30, 2021, multiplied by 12/9.
“Fourth Amendment” means that certain Fourth Amendment to this Agreement, dated as of the Fourth Amendment Effective Date, by and among the Credit Parties, the Agent and the Lenders party thereto.
“Fourth Amendment Delayed Draw Term Loan” has the meaning assigned to it in Section 1.1(b).
“Fourth Amendment Delayed Draw Term Loan Commitment” means the maximum amount, if any, that each Lender under this Agreement may make or otherwise fund as Fourth Amendment Delayed Draw Term Loans, which maximum amount is set forth opposite such Lender’s name on Schedule B or as otherwise documented by such Lender under the Loan Documents, as adjusted from time to time in accordance with this Agreement. The aggregate amount of the Fourth Amendment Delayed Draw Term Loan Commitments as of the Fourth Amendment Effective Date is $1,500,000.
“Fourth Amendment Delayed Draw Term Loan Lender” means each of those certain financial institutions set forth on Schedule B attached hereto that has a Fourth Amendment Delayed Draw Term Loan Commitment as set forth on Schedule B hereto and such other financial institutions that may from time to time make a Fourth Amendment Delayed Draw Term Loan under the Loan Documents, and if at any time any Delayed Draw Term Loan Lender shall decide to assign or syndicate all or any of its Fourth Amendment Delayed Draw Term Loan Commitment subject to Section 8(a) of this Agreement, such term shall include such assignee or such other members of the syndicate.
“Fourth Amendment Effective Date” means February 24, 2023.
“Foreign Lender” shall have the meaning ascribed to such term in Section 8(b)(ii).
“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia or Canada or any province or territory thereof.
“Formula Amount” (and the definitions used in such term) shall have the meaning ascribed thereto in the Revolving Credit Agreement as in effect on the date hereof without giving effect to any amendments or modifications thereto after the date hereof, except to the extent permitted by the Intercreditor Agreement.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied.
“Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“GPEG” means GPEG, LLC, a Delaware limited liability company.
“Grantor” means Borrower and each Subsidiary Guarantor.
“Guaranteed Indebtedness” means, as to any Person, any obligation of such Person guaranteeing any indebtedness, lease, dividend, or other obligation (“primary obligations”) of any other Person (the “primary obligor”) in any manner,
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including any obligation or arrangement of such guaranteeing Person (whether or not contingent): (i) to purchase or repurchase any such primary obligation; (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (iv) to indemnify the owner of such primary obligation against loss in respect thereof.
“Guaranteed Obligations” shall have the meaning ascribed to such term in Section 11.1.
“Guarantees” shall mean the guarantees issued pursuant to Article XI by Holdings and the Subsidiary Guarantors.
“Guarantors” means Holdings and the Subsidiary Guarantors.
“Hazardous Material” means any substance, material or waste that is regulated by or forms the basis of liability now or hereafter under, any Environmental Law, including any material or substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or phrase under any Environmental Law, (b) petroleum or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCBs), or any radioactive substance.
“Hedging Agreement” shall mean any swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates, currency exchange rates or commodity prices, either generally or under specific contingencies.
“Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.
“Inactive Subsidiary” shall mean each of GPEG, Power and Steam.
“Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money or advances; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such Person upon which interest charges are customarily paid or accrued, other than trade accounts payable, taxes and utility charges incurred in the ordinary course of business on customary terms and not overdue by more than 120 days, except, in the case of such accounts payable overdue by more than 120 days, such accounts payable are being contested in good faith and reserves have been made; (d) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding (i) trade accounts payable and accrued obligations incurred in the ordinary course of business on normal trade terms and not overdue by more than 120 days, except for accounts payable being contested in good faith and for which reserves have been made, (ii) any earn-out obligation until such obligation is due and payable and (iii) deferred or equity compensation arrangements entered into in the ordinary course of business and payable to directors, officers and employees made in accordance with Section 5.7(vii)); (f) all Indebtedness (excluding prepaid interest thereon) of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property; (g) all Capital Lease Obligations, Purchase Money Obligations and synthetic lease obligations of such Person; (h) all Hedging Obligations to the extent required to be reflected on a balance sheet of such Person; (i) all Attributable Indebtedness of such Person; (j) all obligations of such Person for the reimbursement of any obligor in respect of letters of credit, letters of guarantee, bankers’ acceptances and similar credit transactions; (k) the principal balance outstanding under any synthetic lease, off-balance sheet loan or similar off-balance sheet financing product; (l) all obligations, whether or not contingent, to purchase, redeem, retire, defease or otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock Equivalent of a direct or indirect parent entity thereof) prior to the date that is 180 days after the Stated Maturity Date valued at, in the case of redeemable preferred Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Stock plus accrued and unpaid dividends; and (m) all Contingent Obligations of such Person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (l) above.
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The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such Person is not liable therefor.
“Indemnified Liabilities” and “Indemnified Person” have the respective meanings assigned to them in Section 1.10.
“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 Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Industrial Design” means, with respect to any Person and throughout the world, all of the following now owned or hereafter acquired by such Person: (i) all industrial designs, intangibles of like nature and any work subject to the design laws of Canada or any other country, (ii) all registrations and applications for registrations of any such industrial designs in Canada or any other country, including registrations in the Canadian Intellectual Property Office, (iii) income, fees, royalties, damages, claims and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (iv) the right to sue for past, present, and future infringements thereof, and (v) rights corresponding thereto throughout the world.
“Insurance Requirements” means, collectively, all provisions of the insurance policies, all requirements of the issuer of any of the insurance policies and all orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon each Credit Party which is an owner of Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.
“Intellectual Property” means any and all Licenses, Patents, Copyrights, Trademarks, Industrial Designs, trade secrets and customer lists.
“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of even date herewith, among Agent and the Revolving Agent, as amended from time to time in accordance with its terms.
“IRC” and “IRS” mean respectively, the Internal Revenue Code of 1986 and the Internal Revenue Service, and any successors thereto.
“Joinder Agreement” means each Joinder Agreement of a new Subsidiary delivered to the Agent after the Closing Date in substantially the form of Exhibit H pursuant to Sections 1.12 and 3.28(b).
“Judgment Conversion Date” has the meaning given to such term in Section 10.19.
“Judgment Currency” has the meaning given to such term in Section 10.19.
“Lender” means each of those certain financial institutions set forth on Schedule B attached hereto, and if at any time any Lender shall decide to assign or syndicate all or any of the Obligations subject to Section 8(a) of this Agreement, such term shall include such assignee or such other members of the syndicate.
“Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.
“LIBOR” means, for each Fiscal Quarter, the greater of (a) one percent (1.0%) per annum and (b) the offered rate per annum for deposits of Dollars for an interest period of 3 months that appears on Reuters Screen LIBOR 01 Page as of 11:00 A.M. (London, England time) two (2) Business Days prior to the first day of each Fiscal Quarter or, for the period from the Closing Date until the end of the first Fiscal Quarter after the Closing Date, prior to the Closing Date, or if no such offered rate exists, such rate will be the rate of interest per annum, as determined by Agent at which
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deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day of each Fiscal Quarter by major financial institutions reasonably satisfactory to Agent in the interbank market for such Fiscal Quarter for the applicable principal amount on such date of determination.
“Licenses” shall mean, with respect to each Grantor, all license and distribution agreements with, and covenants not to sue, any other party with respect to any Patent, Trademark, Copyright or Industrial Design or any other patent, trademark, copyright or industrial design, whether such Grantor is a licensor or licensee, distributor or distributee under any such license or distribution agreement, together with any and all (i) renewals, extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements or violations thereof, (iii) rights to sue for past, present and future infringements or violations thereof and (iv) other rights to use, exploit or practice any or all of the Patents, Trademarks, Copyrights or Industrial Design or any other patent, trademark, copyright or industrial design.
“Lien” means any mortgage, security deed or deed of trust, deemed trust (statutory or otherwise), pledge, hypothecation, hypothec, assignment, deposit arrangement, lien, charge, claim, security interest, security title, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Code, the PPSA or comparable law of any jurisdiction).
“Liquidity” means, as of any date of determination, the sum of (a) Credit Parties’ unrestricted cash and Cash Equivalents on deposit in one more deposit accounts maintained by the Credit Parties with the Agent or at other banks or financial institutions as permitted under the Revolving Loan Agreement, plus (B) Borrowing Availability under the Revolving Credit Agreement,
“Lists” has the meaning given to such term in Section 3.22.
“Litigation” means any claim, lawsuit, litigation, investigation or proceeding of or before any arbitrator or Governmental Authority.
“Loan” has the meaning given to such term in Section 1.1.
“Loan Documents” means this Agreement, each Note, the Guarantee, each Mortgage (if any), the Pledge Agreement, the Control Agreements, the Fee Letters, each Power of Attorney, any waiver or consent of a landlord or mortgagee executed in favor of Agent for the benefit of the Lenders, and all other agreements, instruments, documents and certificates identified in Schedule D executed and delivered to, and in favor of, Agent and including all other agreements, pledges, consents, assignments, contracts and notices whether heretofore, now or hereafter executed by or on behalf of any Credit Party, or any employee of any Credit Party, and delivered to, and in favor of, Agent in connection with the Agreement or the transactions contemplated thereby. Any reference in the Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to the Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Mandatory Prepayments” has the meaning given to such term in Section 1.2(b).
“Margin Stock” has the meaning given to such term in Section 3.8.
“Material Adverse Effect” means a fact, event, circumstance or other effect that, alone or with other facts, events, circumstances or other effects that (a) has resulted in, or could reasonably be expected to result in a material adverse change in the business, condition (financial or otherwise), operations, assets, liabilities (contingent or otherwise) or properties of the Borrower and its Subsidiaries, taken as a whole, (b) impairs, or could reasonably be expected to impair, the ability of the Credit Parties to make any payment or perform any of their other obligations under the Loan Documents or the ability of the Agent or any Lender to enforce its rights and remedies under the Loan Documents, (c) has resulted in, or could reasonably be expected to result in, in a material adverse effect on the liens, including the priority thereof, granted by the Credit Parties in the assets of the Credit Parties or (d) has resulted in, or
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could reasonably be expected to result in, a material adverse effect on the validity or enforceability of any Loan Document.
“Material Holder” means, with respect to any Credit Party, (a) any Person that owns or has the power to vote 25% or more of the issued and outstanding Equity Interests having ordinary voting power for the election of directors of such Credit Party or other Persons performing similar functions for such Credit Party, or (b) any Person that has the power to direct or cause the direction of the management and policies of such Credit Party whether by ownership of equity interests, contract or otherwise.
“Material Owned Real Property” means (a) the Real Property owned by any Credit Party listed in the Perfection Certificate dated as of the Closing Date and (b) any other Real Property owned by a Credit Party or acquired by a Credit Party with a fair market value in excess of $1,000,000.
“Maturity Date” means, with respect to the Term Loan, the earliest to occur of (i) the date of the termination of the acceleration of the maturity of any Obligations pursuant to Section 7.2 and (ii) the Stated Maturity Date.
“Maximum Lawful Rate” has the meaning given to such term in Section 1.5(e).
“Maximum Priority Revolving Loan Debt” has the meaning ascribed to such term in the Intercreditor Agreement.
“Mortgage” means any mortgage or deed of trust from the relevant Credit Party in favor of Agent for the benefit of the Lenders relating to such Credit Party’s real property owned as of the Closing Date, if any, and any other mortgage or deed of trust delivered to the Agent pursuant to Section 3.28.
“Mortgaged Property” shall have the meaning assigned to such term in the Mortgages.
“Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Grantor or any ERISA Affiliate is then making or accruing an obligation to make contributions; (b) to which any Grantor or any ERISA Affiliate has within the preceding five plan years made contributions; or (c) with respect to which any Grantor could incur liability.
“Net Cash Proceeds” shall mean:
| (a) | with respect to any Asset Sale (other than any issuance or sale of Equity Interests), the cash proceeds received by any Credit Party (including cash proceeds subsequently received (as and when received by any Credit Party) in respect of non-cash consideration initially received) net of (i) selling expenses (including reasonable brokers’ fees or commissions, legal, accounting and other professional and transactional fees, transfer and similar taxes and Credit Party’s good faith estimate of income taxes actually paid or payable in connection with such sale); (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Credit Party associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds); (iii) Credit Party’s good faith estimate of payments required to be made with respect to unassumed liabilities relating to the properties sold within ninety (90) days of such Asset Sale (provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within ninety (90) days of such Asset Sale, such cash proceeds shall constitute Net Cash Proceeds); and (iv) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such properties); |
| (b) | with respect to any Debt Issuance, any Equity Issuance or any other issuance or sale of Equity Interests by any Credit Party (other than to another Credit Party), the cash proceeds thereof, net of customary |
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| fees, commissions, costs and other expenses incurred in connection therewith (including reasonable attorney’s, accountant’s and other similar professional advisor’s fees); and |
| (c) | with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received in respect thereof, net of all reasonable costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event. |
“Non-Funding Lender” has the meaning given to such term in Section 1.13.
“Note” means any Term Note.
“NQAP License” means all rights, permits, licenses, approvals and privileges (including all Permits) granted to a Person from time to time in connection with a Nuclear Quality Assurance Plan.
“NRC License” means all rights, permits, licenses, approvals and privileges (including all Permits) granted to a Person from time to time by the U.S. Nuclear Regulatory Commission.
“Obligations” means all loans, advances, debts, expense reimbursement, fees, liabilities, and obligations for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or amounts are liquidated or determinable) owing by Borrower and any other Credit Party to the Lenders arising under any of the Loan Documents, of any kind or nature, present or future, and all covenants and duties regarding such amounts. This term includes all principal, interest, Fees, Charges, expenses, attorneys’ fees and any other sum chargeable to Borrower under any of the Loan Documents (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Loan, and Fees, Charges, costs, expenses and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest or a claim for such Fees, Charges, costs and expense is allowed in such proceeding), and all principal and interest due in respect of the Loan and all obligations and liabilities of any Guarantor under any Guarantee.
“OFAC” has the meaning given to such term in Section 3.22.
“OFAC Laws and Regulations” has the meaning given to such term in Section 3.22.
“Officers’ Certificate” means a certificate executed by the chairman of the Board of Directors (if an officer), the Chief Executive Officer or the president and one of the Responsible Officers, each in his or her official (and not individual) capacity.
“Organization Charts” has the meaning ascribed to such term in Section 2.1(s).
“Organizational Documents” shall mean, with respect to any Person, (i) in the case of any corporation or unlimited liability corporation, the certificate or articles of incorporation, as applicable, and by-laws (or similar documents) of such Person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (iv) in the case of any general partnership, the partnership agreement (or similar document) of such Person and (v) in any other case, the functional equivalent of the foregoing.
“Other Lists” has the meaning given to such term in Section 3.22.
“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).
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“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Ownership Interests” means, as applied to any Person, corporate stock and any and all securities, shares, partnership interests (whether general, limited, special or other), limited liability company interests, membership interests, equity interests, participations, rights or other equivalents (however designated and of any character) of corporate stock of such Person or any of the foregoing issued by such Person (whether a corporation, a partnership, a limited liability company or another entity) and shall include securities convertible into Ownership Interests and rights, warrants or options to acquire Ownership Interests.
“Participant” has the meaning given to such term in Section 8(a).
“Participant Register” has the meaning given to such term in Section 8(a).
“Patents” means all of the following in which any Person now holds or hereafter acquires any interest: (i) all letters patent and patents of the United States or any other country, all registrations and recordings thereof, and all applications for letters patent and patents of the United States or any other country, including registrations, recordings and applications in the United States Patent and Trademark Office, the Canadian Intellectual Property Office or in any similar office or agency of the United States, any State or Territory thereof, or any other country; and (ii) all reissues, continuations, continuations-in-part or extensions thereof.
“Payment Date” has the meaning given to such term in Section 1.1.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Perfection Certificate” means a certificate in the form of Exhibit A attached to this Agreement or any other form approved by the Agent, as the same shall be supplemented from time to time.
“Permit” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Permitted Acquisition” shall mean any transaction for the (a) acquisition of all or substantially all of the assets or property of any Person, or of any business or division of any Person; or (b) acquisition (including by merger or consolidation) of the Equity Interests of any Person that becomes a Subsidiary after giving effect to such transaction; provided that each of the following conditions shall be met:
| (i) | no Default then exists or would result therefrom; |
| (ii) | the Credit Parties shall have delivered to Agent a pro forma balance sheet, pro forma financial statements and a Compliance Certificate demonstrating that, both before and after giving effect to such transaction on a Pro Forma Basis, (A) Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 4.2 as of the most recent Measuring period (assuming (x) for purposes of Section 4.2, that such transaction, and all other Permitted Acquisitions consummated since the first day of the relevant measuring period ending on or prior to the date of such transaction, had occurred on the first day of such relevant measuring period and (y) if such transaction is to be consummated prior to the last day of the first measuring period for which the covenants in Section 4.2 are required to be satisfied, the levels required for such first measuring period shall be deemed to apply in determining compliance with such covenants for purposes of this clause (A)), (B) the Total Leverage Ratio does not exceed 3.25:1.00 (with such Total Leverage Ratio calculated on a Pro Forma Basis as described in the immediately preceding clause (A)) and (C) the Borrower shall have Undrawn Availability (as defined in the Revolving Loan Agreement) of not less than $7,500,000; |
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| (iii) | no Credit Party shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness or other liability (including any material tax or ERISA liability) of the related seller or the business, Person or properties acquired, except obligations not constituting Indebtedness incurred in the ordinary course of business and necessary or desirable to the continued operation of the underlying properties, and any other such liabilities or obligations not permitted to be assumed or otherwise supported by any Credit Party hereunder shall be paid in full or released as to the business, persons or properties being so acquired on or before the consummation of such acquisition; |
| (iv) | the Person or business to be acquired shall be, or shall be engaged in, a business of the type that the Credit Parties are permitted to be engaged in under Section 5.6 and the property acquired in connection with any such transaction shall be made subject to the Lien of the Loan Documents and shall be free and clear of any Liens, other than Permitted Liens; |
| (v) | with respect to the acquisition of Equity Interests, the Person to be acquired shall (i) have a positive Consolidated EBITDA, calculated in accordance with GAAP immediately prior to such acquisition, (ii) be added as a Borrower or a Guarantor in accordance with Section 3.28 and be jointly and severally liable for all Obligations, and (iii) grant to Agent a first priority Lien in all of its assets; |
| (vi) | if such acquisition includes general partnership interests or any other Equity Interest that does not have a corporate (or similar) limitation on liability of the owners thereof, then such acquisition shall be effected by having such Equity Interests acquired by a corporate holding company directly or indirectly wholly-owned by a Credit Party and newly formed for the sole purpose of effecting such acquisition; |
| (vii) | the Board of Directors of the Person to be acquired shall have approved the acquisition; |
| (viii) | all transactions in connection therewith shall be consummated in accordance with all applicable Requirements of Law; |
| (ix) | unless the Agent shall otherwise agree, Borrower shall have provided the Agent with (A) historical Financial Statements for the last three Fiscal Years (or, if less, the number of years since formation) of the Person or business to be acquired (audited if available without undue cost or delay) and unaudited Financial Statements thereof for the most recent interim period which are available, (B) reasonably detailed projections for the succeeding three years pertaining to the Person or business to be acquired and updated projections for Borrower after giving effect to such transaction, (C) a reasonably detailed description of all material information relating thereto and copies of all material documentation pertaining to such transaction, and (D) all such other information and data relating to such transaction or the Person or business to be acquired as may be reasonably requested by the Agent; |
| (x) | at least ten (10) Business Days prior to the proposed date of consummation of the transaction, Borrower shall have delivered to the Agent an Officer’s Certificate certifying that (A) such transaction complies with this definition (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance), and (B) such transaction could not reasonably be expected to result in a Material Adverse Effect; and |
| (xi) | the aggregate amount of the Acquisition Consideration for all Permitted Acquisitions since the Closing Date shall not exceed $5 million; provided that (i) any Equity Interests constituting all or a portion of such Acquisition Consideration shall not have a cash dividend requirement on or prior to the Maturity Date and (ii) any earn-out payments or deferred or future payments shall be subject to a subordination agreement (in form and substance reasonably acceptable to Agent) in favor of Agent subordinating payment of such earn-out payments or deferred or future payments to Agent and such payment obligations shall be unsecured. |
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“Permitted Captive Insurance Subsidiary” means a Captive Insurance Subsidiary that Agent has approved as a Permitted Captive Insurance Subsidiary pursuant to Section 5.21.
“Permitted Joint Venture” means any joint venture or partnership between a Credit Party, on the other hand, and any other Person, on the other hand (each, a “Joint Venture”) so long as (a) immediately prior to and after giving pro forma effect to the formation and capitalization of such Joint Venture, no Default or Event of Default exists; (b) the assets, businesses or activities of the Joint Venture are consistent with the then-current business plan of the Credit Parties; (c) no Indebtedness or Liens are assumed or incurred by such Credit Party as a result of the formation and capitalization of, or as a result of any subsequent investment in, the Joint Venture, except as otherwise expressly permitted by Section 5.1 or Section 5.2; and (d) such Credit Party, the Joint Venture or the customer or customers of the Joint Venture shall obtain customary liability and commercial insurance, in amounts and from reputable insurers as may be necessary for prudent execution of work by the Joint Venture.
“Permitted Xxxxxx-Xxxxxx Pension Plan Obligations” means obligations of the Credit Parties in an aggregate amount not to exceed $2,700,000 for their obligations arising under the International Brotherhood of Electrical Workers Local Union 1392 multi-employer pension plan of Xxxxxx-Xxxxxx Custom Controls Holdings LLC (which Person was previously a Subsidiary of the Credit Parties and filed a voluntary petition for relief under Chapter 7 of Title 11 of the U.S. Bankruptcy Code with the U.S. Bankruptcy Court for the Southern District of Texas on July 11, 2018 (the proceedings relating to such petition, the “Xxxxxx-Xxxxxx Bankruptcy Proceedings”).
“Permitted Liens” means the following encumbrances: (i) Liens for taxes or assessments or other governmental Charges or levies, including Priority Payables, either not yet due and payable or to the extent that nonpayment thereof is permitted by the terms of Section 3.09; (ii) carriers’, warehousemen’s, suppliers’, mechanics’, materialmen’s, repairmen’s or other similar liens arising in the ordinary course of business and securing indebtedness not yet due and payable or overdue for more than 30 days or being contested in good faith by appropriate proceedings and adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP; (iii) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings, provided that the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within thirty (30) days or (in the case of any execution or enforcement pending appeal) such lesser time during which such appeal may be taken; (iv) zoning restrictions, easements, licenses, or other restrictions on the use of real property or other minor irregularities in title thereto, so long as the same do not materially impair the use, value, or marketability of such real estate; (v) Purchase Money Liens securing Purchase Money Obligations (or rent) and Capital Leases, in each case, to the extent permitted under Section 5.1; (vi) Liens in favor of Agent for the benefit of the Lenders securing the Obligations; (vii) Liens in favor of Revolving Agent securing all obligations, indebtedness and liabilities of the Credit Parties under the Revolving Loan Agreement in an amount not to exceed the Maximum Priority Revolving Loan Debt; (viii) Liens existing on the date hereof and listed on Schedule 9 of the Perfection Certificate dated as of the Closing Date; (ix) (A) pledge or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation (other than any Lien being registered or enforced in respect of any Priority Payables and other than any Lien imposed by ERISA), (B) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance and (C) Liens on insurance premium returns and insurance proceeds granted in favor of insurance companies in connection with the financing of insurance premiums with respect thereto in the ordinary course of business; (x) deposits and Liens to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business; (xi) Liens that are contractual rights of set-off (A) solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Credit Party, in each case, which set-off rights are granted in the ordinary course of business in favor of the depository bank or financial institution with which such accounts are maintained, securing amounts owing to such bank or institution with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements, provided that, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness (other than (1) Indebtedness up to the Maximum Priority Revolving Debt Amount to the extent one of the Lenders under the Revolving Loan Agreement, or an Affiliate of such a Lender, is the applicable depository bank or financial institution and such Lien is subject to the Intercreditor Agreement, and (2) Indebtedness (that does not constitute Indebtedness for borrowed money) that is owed to any
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depository or cash management bank that provides cash management services to the Credit Parties), (B) solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Credit Party, in each case, which set-off rights relate to pooled deposit or sweep accounts of the Credit Parties or any Subsidiary (so long as such Subsidiary remains a Subsidiary) to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business, provided that, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness (other than (1) Indebtedness up to the Maximum Priority Revolving Debt Amount to the extent one of the Lenders under the Revolving Loan Agreement, or an Affiliate of such a Lender, is the applicable depository bank or financial institution and such Lien is subject to the Intercreditor Agreement, and (2) Indebtedness (that does not constitute Indebtedness for borrowed money) that is owed to any depository or cash management bank that provides cash management services to the Credit Parties), or (C) relating to purchase orders and other agreements entered into with customers of a Credit Party or any of their Subsidiaries in the ordinary course of business; (xii) the filing of Code and PPSA financing statements solely as a precautionary measure in connection with operating leases entered into by a Credit Party or any of its Subsidiaries in the ordinary course of business; (xiii) Liens in connection with the cash collateralization of the Existing Letters of Credit (and any replacements thereof), so long as the amount secured thereunder does not exceed 105% of the aggregate face amount of such Existing Letters of Credit (or such replacement letters of credit); (xiv) Liens in favor of customs and revenue authorities arising as a matter of applicable Requirements of Law to secure payment of custom duties in connection with the importation of goods in the ordinary course of business; (xv) non-exclusive licenses of Intellectual Property and other intellectual property rights in the ordinary course of business and not interfering in any material respect with the business of any Credit Party, and (xvi) Liens described in clause (b) of the definition of “Excluded Assets.”
“Person” means any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, entity or government (whether federal, state, provincial, territorial, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof), and shall include such Person’s successors and assigns.
“PIK Rate” means the per annum rate equal to (a) Adjusted Term SOFR, plus (b) the Applicable Margin, minus (c) 10% per annum.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC or Section 302 of ERISA, and in respect of which any Credit Party or any ERISA Affiliate is or, within the preceding five years, was an “employer” as defined in Section 3(5) of ERISA.
“Pledge Agreement” means that certain Pledge Agreement, dated as of the Closing Date, by and among the Credit Parties and the Agent pledging as Collateral for the Obligations any Ownership Interests of Subsidiaries owned by each Credit Party other than those Ownership Interests constituting Excluded Assets, as amended, restated, supplemented or otherwise modified from time to time.
“Pledged Securities” shall mean, collectively, with respect to each Credit Party, (i) all issued and outstanding Equity Interests of each issuer set forth in the Perfection Certificate as being owned by such Credit Party and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by such Credit Party (including by issuance), together with all rights, privileges, authority and powers of such Credit Party relating to such Equity Interests in each such issuer or under any Organizational Document of each such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Credit Party in the entries on the books of any financial intermediary pertaining to such Equity Interests, (ii) all Equity Interests of any Subsidiary, which Equity Interests are hereafter acquired by such Credit Party (including by issuance) and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such Subsidiary acquired by such Credit Party (including by issuance), together with all rights, privileges, authority and powers of such Credit Party relating to such Equity Interests or under any Organizational Document of any such Subsidiary, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Credit Party in the entries on the books of any financial intermediary pertaining to such Equity Interests, from time to time acquired by such Credit Party in any manner, and (iii) all Equity Interests issued in respect of the Equity Interests referred to in clause (i) or (ii) upon any consolidation, merger or amalgamation of any issuer of such Equity Interests; provided, however, that Pledged Securities shall not include any Equity Interests which are not required to be pledged pursuant to Section 3.28 or that constitute Excluded Assets.
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“Post-Closing Organization Chart” has the meaning ascribed to such term in Section 2.1(s).
“Power” means Global Power Professional Services, Inc., a Delaware corporation.
“Power of Attorney” means each Power of Attorney of the Credit Parties delivered to Agent as of the Closing Date in substantially the form of Exhibit D and any Power of Attorney delivered to the Agent after the Closing Date pursuant to Section 1.12.
“PPSA” means the Personal Property Security Act (British Columbia) (and other equivalent personal property security legislation in any other applicable Canadian province or territory) and the regulations thereunder, as from time to time in effect, provided, however, if attachment, perfection or priority of the Agent’s or any Lender’s security interest in any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than British Columbia, with respect to such Collateral, PPSA shall mean those personal property security laws in such other jurisdiction of Canada (including the Civil Code of Québec and the regulation respecting the register of personal and movable real rights thereunder) for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.
“Pre-Closing Organization Chart” has the meaning ascribed to such term in Section 2.1(s).
“Preferred Stock” shall mean, with respect to any Person, any and all preferred or preference Equity Interests (however designated) of such Person whether now outstanding or issued after the Closing Date.
“Preferred Stock Issuance” shall mean the issuance or sale by any Credit Party of any Preferred Stock after the Closing Date (other than (x) as permitted by Section 5.1 or (y) any Excluded Issuance).
“Prepayment” has the meaning given to such term in Section 1.2(b).
“Priority Payables” means (a) the full amount of the liabilities of any Credit Party which (i) have a trust imposed to provide for payment or a security interest, pledge, Lien, hypothec or charge ranking or capable of ranking senior to or pari passu with security interests, Liens, hypothecs or charges securing the Obligations on any Collateral under any federal, provincial, state, county, district, municipal, local or foreign law or (ii) have a right imposed to provide for payment ranking or capable of ranking senior to or pari passu with the Obligations under federal, provincial, state, county, district, municipal, local or foreign law, regulation or directive, including, but not limited to, claims for unremitted and/or accelerated rents, taxes, wages, withholdings taxes, value added taxes, amounts payable to an insolvency administrator, employee withholdings or deductions, vacation pay, severance and termination pay, workers’ compensation obligations, government royalties or pension obligations in each case to the extent such trust, or security interest, Lien, hypothec or charge has been or may be imposed, including under the Wage Earner Protection Program Act (Canada), and (b) the amount equal to the aggregate value of the inventory which the Agent, in good faith, and on a reasonable basis, considers is or may be subject to retention of title by a supplier or a right of a supplier to recover possession thereof, where such supplier’s right has priority over the security interests, Liens, hypothecs or charges securing the Obligations, including, without limitation, inventory subject to a right of a supplier to repossess goods pursuant to Section 81.1 of the Bankruptcy and Insolvency Act (Canada) or any applicable laws granting revendication or similar rights to unpaid suppliers or any similar laws of Canada or any other applicable jurisdiction.
“Pro Forma Basis” shall mean on a basis in accordance with GAAP and otherwise reasonably satisfactory to the Agent.
“Proceeds” means “proceeds,” as such term is defined in the Code or the PPSA, as applicable, and, in any event, shall include: (i) any and all proceeds of any insurance, indemnity, warranty or guarantee payable to any Grantor from time to time with respect to any Collateral; (ii) any and all payments (in any form whatsoever) made or due and payable to any Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of any Collateral by any governmental body, authority, bureau or agency (or any Person acting under color of governmental authority); (iii) any recoveries by any Grantor against third parties with respect to any litigation or dispute concerning any Collateral, including claims arising out of the loss or nonconformity of, interference with the use of, defects in, or infringement of rights in, or damage to, Collateral; and (iv) any and all other amounts, rights to payment or other property acquired upon the sale, lease, license, exchange or other disposition of Collateral (excluding
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amounts and rights to payment arising from the rental of any of the Collateral to customers of the Borrower or any of its Subsidiaries or distributors) and all rights arising out of Collateral.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Protective Advance Percentages” means, as to any Lender and as of any date of determination, the percentage determined by dividing (a) the aggregate principal amount of the Term Loans then held by such Lender, by (b) the aggregate principal amount of the Term Loans then held by all Lenders.
“Purchase Money Lien” means any Lien upon any fixed assets that secure the Purchase Money Obligations related thereto but only if such Lien shall at all times be confined solely to the assets the purchase price of which was financed or refinanced through the incurrence of the Purchase Money Obligations secured by such Lien (and the proceeds thereof) and only if such Lien secures only such Purchase Money Obligations.
“Purchase Money Obligations” means for any Person the obligations of such Person in respect of Indebtedness incurred for the purpose of financing all or any part of the purchase price of any property (including Equity Interests of any Person) or the cost of installation, construction or improvement of any property and any refinancing thereof; provided, however, that (i) such Indebtedness is incurred within one year after such acquisition, installation, construction or improvement of such property by such Person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be.
“Qualified Capital Stock” means of any Person any Equity Interests of such Person that are not Disqualified Capital Stock.
“Real Property” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
“Recipient” means Agent and any Lender.
“Register” has the meaning given to such term in Section 8(a).
“Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor and other consultants and agents of or to such Person or any of its Affiliates.
“Release” means as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials in the indoor or outdoor environment by such Person, including the movement of Hazardous Materials through or in the air, soil, surface water, ground water or property.
“Rental Office” means any rental office of the Borrower or any of its Subsidiaries that is not located in a Restricted Location.
“Required Lenders” means, at any time, Lenders having at such time in excess of 50% of the sum of the aggregate Term Loan Commitments (or, if such Term Loan Commitments are terminated, the amount outstanding under the Term Loans) then in effect; provided, however, that at any time when there are two (2) or more Lenders, Required Lenders shall require at least two (2) Lenders. For purposes of calculation of Required Lenders, a Lender and any of its Affiliates that are also a Lender, and their respective Term Loan Commitments and/or holdings of the Term Loans, shall be deemed to be a single Lender with a single consolidated Term Loan Commitment and/or holding a single consolidated Term Loan.
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“Requirement of Law” means as to any Person, the Certificate or Articles of Incorporation and By-Laws or other Organizational Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case, binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” means, with respect to any Person (other than an individual), any officer at the level of vice president or higher of, but in any event, with respect to financial matters, the chief financial officer, chief accounting officer, treasurer or controller of such Person.
“Restricted Locations” has the meaning ascribed to such term in Section 3.21(c).
“Restricted Payment” means: (a) the declaration or payment of any dividend or the incurrence of any liability to make any other payment or distribution of cash or other property or assets on or in respect of Borrower’s or any other Credit Party’s Stock, (b) any payment or distribution made in respect of any subordinated Indebtedness of Borrower or any other Credit Party in violation of any subordination or other agreement made in favor of Agent for the benefit of the Lenders, (c) any payment on account of the purchase, redemption, defeasance or other retirement of Borrower’s or any other Credit Party’s Stock or Indebtedness or any other payment or distribution made in respect of any thereof, either directly or indirectly; other than (i) that arising under this Agreement, (ii) interest and principal, when due without acceleration or modification of the amortization as in effect on the Closing Date, under Indebtedness (not including subordinated Indebtedness, payments of which shall be permitted only in accordance with the terms of the relevant subordination agreement made in favor of Agent for the benefit of the Lenders) permitted under Sections 5.1 (provided that any payments made by Credit Parties on the Permitted Xxxxxx-Xxxxxx Pension Plan Obligations shall not exceed $300,000 per Fiscal Year), (iii) payments and prepayments with respect to Indebtedness under the Revolving Loan Agreement in an aggregate amount not to exceed the Maximum Priority Revolving Loan Debt as of any date of determination and otherwise permitted pursuant to the terms of the Intercreditor Agreement, or (d) any payment, loan, contribution, or other transfer of funds or other property to any holder of Stock of such Person which is not expressly and specifically permitted in this Agreement; provided that any payment to Agent or any Lender shall not constitute a Restricted Payment.
“Revolving Agent” means PNC Bank, National Association.
“Revolving Loan Agreement” means that certain Revolving Credit and Security Agreement, dated as of the Closing Date, by and among Revolving Agent, the Credit Parties party thereto, the lenders from time to time party thereto, as amended, restated, supplemented and/or modified to the extent permitted by the terms of the Intercreditor Agreement.
“Revolving Loan Documents” has the meaning assigned to the term “Other Documents” under the Revolving Loan Agreement.
“SBA” means the United States Small Business Administration and any successor thereto.
“SBA Forms” means, collectively, SBA forms 480, 652 and 1031.
“SBA Side Letter” means a Small Business Investment Company side letter among the Borrower and the SBICs (as amended, restated, supplemented, or otherwise modified from time to time accordance with its terms) in form and substance reasonably satisfactory to Agent and the Borrower.
“SBIC” means Agent or certain of its Affiliates that is a Federal licensee under the Act.
“SDN List” has the meaning given to such term in Section 3.22.
“Second Amendment” means that certain Second Amendment to this Agreement, dated as of the Second Amendment Effective Date, by and among the Credit Parties, the Agent and the Lenders party thereto.
“Second Amendment Effective Date” means December 30, 2022.
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“Secretarial Certificate” means each Secretarial Certificate of the Credit Parties delivered to Agent as of the Closing Date in substantially the form of Exhibit C and any Secretarial Certificate delivered to the Agent after the Closing Date pursuant to Section 1.12.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (d) of the definition of “Base Rate”.
“Solvent” means, with respect to any Person on a particular date, that on such date (a) the assets of such Person, at a fair valuation, exceed its liabilities, including contingent liabilities, (b) the remaining capital of such Person is not unreasonably small to conduct its business and (c) such Person will not have incurred debts, and does not have the present intent to incur debts, beyond its ability to pay such debts as they mature. For purposes of this definition, “debt” means any liability on a claim, and “claim” means any (i) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. In computing the amount of contingent liabilities of any Person on any date, such liabilities shall be computed at the amount that, in the reasonable judgment of the Agent in light of all facts and circumstances existing at such time, represents the amount of such liabilities that reasonably can be expected to become actual or matured liabilities.
“Specified Canadian Account” means the bank account of the Credit Parties with TD Canada Trust with account number as previously identified to Agent in writing with account number ending 5675.
“Stated Maturity Date” means December 16, 2025.
“Steam” means Steam Enterprises LLC, a Delaware limited liability company.
“Stock” means all certificated and uncertificated shares, options, warrants, membership interests, general or limited partnership interests, participation or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock, beneficial interests in a trust or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act) or other equity interests in any Person.
“Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.
“Subordinated Creditors” means each of Wynnefield Partners Small Cap Value, LP and Wynnefield Partners Small Cap Value, LP I as payee under the Subordinated Notes and in any related capacity under the Subordinated Loan Documents.
“Subordinated Debt” means the Indebtedness issued under the Subordinated Loan Documents.
“Subordinated Guaranty” means, individually and collectively, (a) that certain Guaranty, dated as of the Third Amendment Effective Date, in form and substance satisfactory to Agent, by and among Guarantors and Wynnefield Partners Small Cap Value, LP, and (b) that certain Guaranty, dated as of the Third Amendment Effective Date, in form and substance satisfactory to Agent, by and among Guarantors and Wynnefield Partners Small Cap Value, LP I.
“Subordinated Note” means, individually and collectively, each of those certain Unsecured Promissory Notes, dated as of the Third Amendment Effective Date, in form and substance satisfactory to Agent, by and among Holdings as
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maker thereunder and Wynnefield Partners Small Cap Value, LP or Wynnefield Partners Small Cap Value, LP I, as applicable, as payee thereunder.
“Subordinated Loan Documents” means (a) each Subordinated Note, each Subordinated Guaranty, the Subordination Agreement, and any other documents entered into in connection with the foregoing, and (b) means each other subordinated promissory note or agreement issued by a Credit Party to or any other Person that shall have entered into a Subordination Agreement with the Agent, on behalf of the Lenders, subsequent to the Fourth Amendment Effective Date, and each other promissory note, instrument and agreement executed in connection therewith, in each case of clauses (a) and (b), as the same may from time to time be amended, restated, or otherwise modified or replaced in accordance with the terms of the applicable Subordination Agreement.
“Subordination Agreement” means a Subordination Agreement in form and substance satisfactory to the Agent which sets forth subordination terms applicable to the Subordinated Debt.
“Subsidiary” means, with respect to any Person, (i) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding Stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of more than fifty percent (50%) of such Stock whether by proxy, agreement, operation of law or otherwise, and (ii) any partnership or limited liability company in which such Person or one or more Subsidiaries of such Person has an equity interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or manager or may exercise the powers of a general partner or manager. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary of Holdings. In no event shall the term “Subsidiary” include a Permitted Joint Venture or Xxxxxx-Xxxxxx Custom Control Holdings LLC.
“Subsidiary Guarantor” means each direct or indirect Subsidiary of the Borrower as of the Closing Date and each other direct or indirect Subsidiary that becomes a party to this Agreement pursuant to Section 1.12, in each case other than any Unrestricted Subsidiary.
“Substitute Lender” has the meaning given to such term in Section 1.14(a).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan” has the meaning given to such term in Section 1.1.
“Term Loan Commitment” means any Closing Date Term Loan Commitment and any Delayed Draw Term Loan Commitment.
“Term Note” has the meaning given to such term in Section 1.1.
“Term SOFR” means, (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for an interest period of three (3) months for each quarter as determined on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such quarter, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for such interest period has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such interest period as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such interest period was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day; and (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for an interest period of
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one (1) month as determined on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable interest period has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such interest period as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such interest period was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day.
“Term SOFR Adjustment” means (a) for any calculation with respect to a SOFR Loan, a percentage equal to 0.26161% per annum, and (b) for any calculation with respect to a Base Rate Loan, a percentage equal to 0.11448% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the date on which all Obligations under this Agreement are paid in full, in cash (other than contingent obligations not yet due and payable), and Borrower shall have no further right to borrow any moneys or obtain other credit extensions or financial accommodations from the Lenders under this Agreement.
“Threshold Amount” means $500,000.
“Third Amendment” means that certain Third Amendment to this Agreement, dated as of the Third Amendment Effective Date, by and among the Credit Parties, the Agent and the Lenders party thereto.
“Third Amendment Effective Date” means January 9, 2023.
“Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.
“Total Leverage Ratio” shall mean, at any date of determination, the ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the trailing twelve (12) Fiscal Month period most recently ended.
“Trademarks” means all of the following now owned or hereafter adopted or acquired by any Person: (i) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered) all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Patent and Trademark Office, the Canadian Intellectual Property Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof: (ii) all reissues, extensions or renewals thereof; and (iii) all goodwill associated with or symbolized by any of the foregoing.
“Transaction Documents” means, collectively, the Revolving Loan Documents and the Loan Documents.
“Transactions” means, collectively, the transactions to occur on or prior to the Closing Date pursuant to the Transaction Documents, including (a) the execution, delivery and performance of the Loan Documents and the initial borrowings hereunder; (b) the incurrence of the Indebtedness under the Revolving Loan Agreement; (c) reserved; (d) reserved; (e) the refinancing of all existing Indebtedness on the Closing Date (other than Indebtedness that is permitted under this Agreement); and (f) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the foregoing.
“Transferred Guarantor” has the meaning given to such term in Section 11.9.
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“Unrestricted Subsidiaries” means, to the extent not required to be a Guarantor hereunder, each Permitted Captive Insurance Subsidiary.
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56).
“U.S. Borrower” means a Borrower that is a U.S. Person.
“U.S. Credit Party” means a Credit Party that is a U.S. Person.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the IRC.
“U.S. Publicly-Traded Entity” has the meaning given to such term in Section 3.22.
“U.S. Tax Compliance Certificate” shall have the meaning ascribed to such term in Section 8(b)(ii)(C).
“Voluntary Prepayment” has the meaning given to such term in Section 1.2(b).
“Voting Stock” means, with respect to any Person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such Person.
“Wholly Owned Subsidiary” means, as to any Person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a 100% equity interest at such time.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Section 4203 and Section 4205 of ERISA.
“Withholding Agent” means Borrower and Agent.
Any accounting term used in this Agreement or the other Loan Documents shall have, unless otherwise specifically provided therein, the meaning customarily given such term in accordance with GAAP, and all financial computations thereunder shall be computed, unless otherwise specifically provided therein, in accordance with GAAP consistently applied; provided, that all financial covenants and calculations in the Loan Documents shall be made in accordance with GAAP as in effect on the Closing Date unless Borrower and Agent shall otherwise specifically agree in writing. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing. All other capitalized terms contained in this Agreement or the other Loan Documents, but not defined herein or therein, shall, unless the context indicates otherwise, have the meanings provided for by the Code or the PPSA, as the context may require. The words “herein,” “hereof” and “hereunder” or other words of similar import refer to this Agreement as a whole, including the exhibits and schedules thereto, as the same may from time to time be amended, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement.
For purposes of this Agreement and the other Loan Documents, the following additional rules of construction shall apply, unless specifically indicated to the contrary: (a) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural; (b) the term “or” is not exclusive; (c) the term “including” (or any form thereof) shall not be limiting or exclusive; (d) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; and (e) all references to any instruments or agreements, including references to any of the Loan Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof.
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Any term defined in this Agreement by reference to the Code shall also have any extended, alternative or analogous meaning given to such term in the PPSA and under other Canadian laws (including, without limitation, the Securities Transfer Act (British Columbia) and the other securities transfer legislation in effect from time to time in any of province or territory of Canada, the Bills of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), in all cases for the extension, preservation or betterment of the security and rights of the Agent and the Lenders, (ii) all references in this Agreement to a financing statement, financing change statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under the PPSA, including, without limitation, where applicable, financing change statements and (iii) all references to federal or state securities law of the United States shall be deemed to refer also to analogous federal, provincial and territorial securities laws in Canada.
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6.1
