SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of April 3, 2018 among OSHKOSH CORPORATION, as the Company, CERTAIN SUBSIDIARIES OF OSHKOSH CORPORATION, as Subsidiary Borrowers, VARIOUS FINANCIAL INSTITUTIONS, BANK OF AMERICA, N.A., as Agent, as...

 

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“Add-On Term Commitment” means, as to any Add-On Term Lender, such Add-On Term Lender’s obligation to fund an Add-On Term Loan pursuant to Section 2.21 and the related Add-On Term Joinder Agreement.

 

“Add-On Term Facility” means, at any time and as to any particular Class of Add-On Term Loans, the aggregate principal amount of the Add-On Term Loans of all Add-On Term Lenders outstanding at such time.

 

“Add-On Term Joinder Agreement” has the meaning specified in Section 2.21(b)(ii)(A).

 

“Add-On Effective Date” means, as to any particular Class of Add-On Term Loans, the effective date of the applicable Add-On Term Joinder Agreement executed and delivered by the relevant parties (in accordance with Section 2.21) to institute such Class of Add-On Term Loans.

 

“Add-On Term Lenders” has the meaning specified in Section 2.21(b)(ii)(A).

 

“Add-On Term Loans” has the meaning specified in Section 2.21(a).

 

“Add-On Term Maturity Date” means, as to any particular Class of Add-On Term Loans, the earlier to occur of (a) the date specified as the stated maturity date for such Add-On Term Loans in the applicable Add-On Term Joinder Agreement, and (b) the date on which such Add-On Term Loans become due and payable pursuant to Section 9.02.

 

“Add-On Term Percentage” means, as to any Add-On Term Lender, the percentage which (a) the Add-On Term Commitment of such Lender as to the particular Class of Add-On Term Loans (or, after the applicable Add-On Effective Date, the principal amount of such Lender’s applicable Add-On Term Loan) is of (b) the aggregate amount of Add-On Term Commitments as to the particular Class of Add-On Term Loans (or, after the applicable Add-On Effective Date, the aggregate principal amount of all applicable Add-On Term Loans).

 

“Administrative Questionnaire” means an administrative questionnaire substantially in a form supplied by the Agent.

 

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, membership interests, by contract, or otherwise (but, for the avoidance of doubt, no individual shall be deemed to be an Affiliate of a Person solely because such individual is a director, senior officer or the equivalent of such Person).

 

“Agent” means Bank of America in its capacity as administrative agent for the Lenders hereunder, and any successor administrative agent arising under Section 10.06.

 

“Agent-Related Persons” means, collectively, the Agent (and any successor administrative agent arising under Section 10.06) and each Co-Syndication Agent, together with their respective Affiliates (including MLPFS and WFS), and the officers, directors, employees, agents and attorneys-in-fact of the foregoing.

 

“Agent’s Payment Office” means the address for payments set forth on Schedule 11.02, or such other address as the Agent may from time to time specify.

 

“Aggregate Revolving Commitment” means the aggregate amount of the Revolving Commitments of the Lenders.  The aggregate principal amount of the Aggregate Revolving Commitment in effect on the Effective Date is EIGHT HUNDRED FIFTY MILLION DOLLARS ($850,000,000).

 

“Agreement” means this Credit Agreement.

 

“Agreement Currency” has the meaning specified in Section 11.16.

 

“Alternative Currency” means (a) any Offshore Currency, and (b) any other currency which is at the relevant time freely traded in the offshore interbank foreign exchange markets and is freely transferable and freely convertible into Dollars which, as applicable, (i) the applicable Borrower requests the applicable Fronting Lender to include as an Alternative Currency hereunder and which is acceptable to the applicable Fronting Lender and with respect to which an Offshore Currency Addendum has been executed by a Subsidiary Borrower or the Company and the applicable Fronting Lender in connection therewith; or (ii) a Borrower requests as the currency in which a Letter of Credit is to be denominated and which is acceptable to the Issuer thereof.

 

“Applicable Base Rate Margin” - see Schedule 1.01(a).

 

“Applicable Commitment Fee Percentage” - see Schedule 1.01(a).

 

“Applicable Currency” means, as to any particular Letter of Credit or Loan, Dollars or the Offshore Currency or Alternative Currency in which it is denominated or payable.

 

“Applicable Letter of Credit Fee Rate” - see Schedule 1.01(a).

 

“Applicable Offshore Rate Margin” - see Schedule 1.01(a).

 

“Applicable Percentage” means (a) in respect of the Term A Facility, with respect to any Term A Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A Facility represented by (i) on the Effective Date, such Term A Lender’s Term A Commitment at such time, and (ii) thereafter, the principal amount of such Term A Lender’s Term A Loans at such time (subject to adjustment as provided in Section 3.12), (b) in respect of any Add-On Term Facility, with respect to any Add-On Term Lender under such Add-On Term Facility at any time, the percentage (carried out to the ninth decimal place) of such Add-On Term Facility represented by (i) on the applicable Add-On Effective Date, such Add-On Term Lender’s Add-On Term Commitment at such time, and (ii) thereafter, the principal amount of such Add-On Term Lender’s Add-On Term Loans at such time (subject to adjustment as provided in Section 3.12), and (c) in respect of the Revolving Credit Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Lender’s Revolving Commitment at such time (subject to adjustment as provided in Section 3.12); provided, that, if the commitment of each Lender to make Loans and the obligation of the Issuers to Issue Letters of Credit have been terminated pursuant to Section 9.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the applicable facility shall be determined based on the Applicable Percentage of such Lender in respect of such facility most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender in respect of each facility is set forth opposite the name of such Lender on Schedule 2.01, or in the applicable Add-On Term Joinder Agreement, lender joinder agreement or Assignment and Assumption, in each case, pursuant to which such Lender becomes a party hereto, as applicable.

 

“Applicable Threshold Price” has the meaning specified in Schedule 2.22.

 

“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Agent or the applicable Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Assignee” has the meaning specified in Section 11.07(a).

 

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor or by affiliated investment advisors.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.07(a)), and accepted by the Agent, substantially in the form of Exhibit D or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Agent.

 

“Attorney Costs” means and includes all reasonable and documented fees and disbursements of any law firm or other external counsel.

 

“Auction” has the meaning specified in Section 2.22(a).

 

“Auction Amount” has the meaning specified in Schedule 2.22.

 

“Auction Assignment and Assumption” has the meaning specified in Schedule 2.22.

 

“Auction Manager” has the meaning specified in Section 2.22(a).

 

“Auction Notice” has the meaning specified in Schedule 2.22.

 

“Auto-Extension Letter of Credit” has the meaning specified in Section 3.02(d).

 

“Average Life” means, as of any date of determination, with respect to any Indebtedness, the quotient obtained by dividing (a) the sum of the products of (i) the number of years from the date of determination to the dates of each successive scheduled principal payment (including any sinking fund or mandatory redemption payment requirements) of such Indebtedness multiplied by (ii) the amount of such principal payment by (b) the sum of all such principal payments.

 

“Backup Support” means, with respect to any Letter of Credit, to Cash Collateralize such Letter of Credit or to deliver to the Agent a letter of credit, from a financial institution and in a form satisfactory to the Agent and the applicable Issuer, to support the Company’s obligations with respect to such Letter of Credit.

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

“Bank of America” means Bank of America, N.A., a national banking association.

 

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.).

 

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”; and (c) the sum of 1.00% plus the Offshore Rate (as determined pursuant to clause (b) of the definition of “Offshore Rate” and clause (b) of the definition of “Offshore Base Rate”); provided, that, if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.  The “prime rate” referred to in clause (b) above is a rate set by Bank of America based upon various factors, including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Base Rate Loan” means a Loan or an L/C Advance that bears interest based on the Base Rate and is denominated in Dollars. All Base Rate Loans are available only to the Company and any Subsidiary Borrower that is a Domestic Subsidiary.

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Board of Directors” means, with respect to any Person, its board of directors (or the substantial equivalent if such entity is not a corporation) or any duly authorized committee thereof, as applicable.

 

“Borrower” means either the Company or any Subsidiary Borrower, and “Borrowers” means the Company and all Subsidiary Borrowers.

 

“Borrower Materials” has the meaning specified in Section 7.02.

 

“Borrowing” means a borrowing hereunder consisting of Loans of the same Class and Type made to the Company on the same day by the applicable Lenders or a borrowing consisting of Revolving Loans of the same type made to a Subsidiary Borrower under Article II and, in the case of Offshore Rate Loans, having the same Interest Period and denominated in the same Offshore Currency.  The making of either a Swing Line Loan or a Fronted Offshore Currency Loan shall not constitute a Borrowing.

 

“Borrowing Date” means any date on which a Borrowing occurs under Section 2.03.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Agent’s Payment Office is located and:

 

 

 

 

 

“Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the benefit of the Agent, the Issuers, the Swing Line Lenders, the Fronting Lenders, and the Revolving Lenders, as applicable, as additional collateral for the L/C Obligations, Obligations in respect of Swing Line Loans, Obligations in respect of Fronted Offshore Currency Loans, or obligations of Lenders to fund participations in respect of any thereof (as the context may require), cash or deposit account balances, in each case pursuant to documentation in form and substance reasonably satisfactory to the Agent, the Issuers, the Swing Line Lenders, and the Fronting Lenders, as applicable (which documents are hereby consented to by the Revolving Lenders).  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral.

 

“Cash Interest Expense” means, for any period, the consolidated interest expense of the Company and its Restricted Subsidiaries for such period to the extent paid in cash (net of cash payments received in respect of interest rate hedging transactions under Swap Contracts) minus, to the extent included in such amount, (a) fees, costs and expenses (including, without limitation, debt issuance costs, make-whole premiums, prepayment penalties, commissions and original issue discount) incurred in connection with the consummation of this Agreement or the issuance, incurrence or repayment of any Indebtedness permitted hereunder; (b) annual administrative agency fees paid to the Agent; (c) capitalized costs incurred in connection with the initial closing of any Swap Contract; and (d) any cash interest expense in respect of indebtedness that has been defeased and/or discharged by the deposit of cash and/or cash equivalents, in accordance with its terms, to the extent (i) cash and/or cash equivalents representing defeasance and/or discharge of such interest expense are deposited in connection therewith and (ii) such interest expense accrues after such deposit.

 

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

 

“Change in Law” means the occurrence, after the Effective Date (or, solely with respect to any Person that becomes a Lender after the Effective Date, the occurrence after the date such Person becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Change of Control” means the occurrence of any of the following: (a) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange Act); (b) the adoption of a plan relating to the liquidation or dissolution of the Company; (c) the consummation of any transaction (including any merger or consolidation) the result of which is that any “person” (as defined above) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition), directly or indirectly of more than 30% of the Voting Stock of the Company (measured by voting power rather than number of shares); (d) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance); or (e) during any period of 12 consecutive calendar months (or less), commencing on the Effective Date, the ceasing of those individuals (the “Continuing Directors”) who (i) were directors of the Company on the first day of each such period or (ii) subsequently became directors of the Company and whose actual election or initial nomination for election subsequent to that date was approved by a majority of the Continuing Directors then on the Board of Directors of the Company, to constitute a majority of the Board of Directors of the Company.

 

“Class” means, with respect to any Loan, its characterization as a Revolving Loan, a Term A Loan, or any Add-On Term Loan outstanding under a particular Add-On Term Facility.

 

“Co-Documentation Agents” means each of Branch Banking & Trust Company, HSBC Bank USA, National Association, ING Bank N.V., Dublin Branch, PNC Bank, National Association, Sumitomo Mitsui Banking Corporation, SunTrust Bank and TD Bank, N.A., in each case in its capacity as a co-documentation agent for the Lenders hereunder.

 

“Code” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.

 

“Commitment” means a Fronted Offshore Currency Commitment, an Add-On Term Commitment, a Revolving Commitment, a Term Commitment, an Issuer Commitment, or a Swing Line Commitment, as the context may require.

 

“Company” has the meaning specified in the introductory clause hereto.

 

“Competitor” means any competitor of the Company or any Subsidiary that is in one or more of the same or similar lines of business as the Company or any Subsidiary designated in writing from time to time by the Company to the Agent.

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit C.

 

“Computation Date” means (a) any day on which the Aggregate Revolving Commitment is reduced pursuant to Section 2.09; (b) with respect to matters relating to Offshore Rate Loans, each day on which a Borrower borrows, converts or continues any Offshore Rate Loan and each Interest Payment Date with respect to any Offshore Rate Loan; (c) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by an Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) with respect to the Existing Letters of Credit denominated in Alternative Currencies, the Effective Date; and (d) such additional dates as the Agent or the applicable Issuer shall determine or the Required Lenders shall require.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated EBITDA” means, for any period, the consolidated net income (or net loss) of the Company and its Restricted Subsidiaries for such period, plus (or minus, if a credit or a negative number) the following (without duplication), in each case to the extent included in the determination of such consolidated net income (or net loss): (a) all amounts treated as expenses for depreciation, all interest expense and all amortization of intangibles of any kind; (b) all taxes on or measured by income; (c) all charges arising from “last in first out” valuation of inventory; (d) the amount of post-retirement health benefits accrued in such period (less the amount of post-retirement health benefits paid in such period), in an aggregate amount not to exceed $10,000,000 in any four fiscal quarter period; (e) identifiable non-recurring or unusual cash expenses, charges, losses and deductions for such period in an aggregate amount not to exceed $30,000,000 in any four fiscal quarter period; (f) all charges or credits arising from the write-off of intangible assets (without duplication of any amounts set forth in clause (a)); (g) expenses relating to stock-based compensation plans resulting from the application of FASB ASC 718; and (h) fees, costs, expenses, premiums, make-whole amounts, penalty payments and other similar items during such period in connection with any issuance, incurrence or repayment of Indebtedness, any issuance of Equity Interests, any Investment, any Acquisition and any Disposition, in each case to the extent permitted hereunder; provided, that, consolidated net income (or net loss) and each adjustment described in the foregoing clauses (a) through (h) shall be computed (i) without giving effect to losses or gains that are both unusual in nature and infrequently occurring; (ii) without giving effect to losses and gains from discontinued operations or casualty events (for the avoidance of doubt, if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, such gains shall be excluded in the calculation of Consolidated EBITDA only when and to the extent such operations are actually disposed of); (iii) without regard to the net income (or net loss) of Leasing Subsidiaries or to the carrying value of the equity interest of the Company and its Restricted Subsidiaries in Leasing Subsidiaries; (iv) without giving effect to any dividends or other distributions received by the Company and its Restricted Subsidiaries from Leasing Subsidiaries or any equity contributions made by the Company and its Restricted Subsidiaries to Leasing Subsidiaries; and (v) excluding any gain or loss realized in connection with any extinguishment of indebtedness contemplated by Section 2.22; provided, further, that, (A) for purposes of computing Consolidated EBITDA, Acquisitions and Material Dispositions made by the Company or any of its Restricted Subsidiaries during any relevant four-quarter period shall be deemed to have occurred (and any Indebtedness incurred or assumed in connection with an Acquisition, or repaid with the proceeds of a Material Disposition, shall be deemed to have been incurred, assumed or repaid, as the case may be) on the first day of such period and Consolidated EBITDA for any such period shall be calculated to include pro forma adjustments with respect to income and expense associated with the acquired or disposed of assets or entity (all consistent with clauses (a) through (h) above); and (B) all non-cash charges, expenses, losses and similar items taken or incurred in any period shall be added back to Consolidated EBITDA for such period and all cash payments made in any period that arise out of non-cash charges, expenses, losses and similar items taken or incurred in a previous period shall be subtracted from Consolidated EBITDA.

 

 

“Consolidated Net Tangible Assets” of any Person means the aggregate amount of assets of such Person and its Restricted Subsidiaries after deducting therefrom (to the extent otherwise included therein) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent quarterly or annual (as the case may be) consolidated balance sheet (prior to the relevant date of determination) of such Person and its Restricted Subsidiaries in accordance with GAAP.

 

“Contingent Obligation” means, as to any Person and without duplication, any direct or indirect liability of that Person, whether or not contingent, with or without recourse, (a) with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”), including any obligation of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations or any security therefor; (ii) to advance or provide funds for the payment or discharge of any such primary obligation, or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial 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) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b) with respect to any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments; (c) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered; or (d) in respect of any Swap Contract (other than in respect of ordinary course foreign currency hedging arrangements).  The amount of any Contingent Obligation shall (A) in the case of Guaranty Obligations of the Company and its Restricted Subsidiaries constituting guarantees of customer financing in the ordinary course of business and substantially consistent with past practice, be deemed to equal 25% of such Guaranty Obligations, (B) in the case of other Guaranty Obligations, be deemed equal to the lesser of (1) the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof, and (2) the stated amount of the guaranty, (C) in the case of Contingent Obligations in respect of Swap Contracts, be deemed equal to the aggregate Swap Termination Value of such Swap Contracts, (D) in the case of Contingent Obligations in respect of Surety Instruments other than Non-Surety L/Cs, be deemed equal to the probable amount of the expected liability thereunder, and (E) in the case of Contingent Obligations in respect of Non-Surety L/Cs, be deemed equal to (1) the face amount of outstanding Non-Surety L/Cs which are not Letters of Credit, and (2) the outstanding amount of L/C Obligations in respect of Non-Surety L/Cs which are Letters of Credit pursuant to Article III.

 

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.

 

“Conversion/Continuation Date” means any date on which, under Section 2.04, a Borrower (a) converts Revolving Loans or Term Loans of one Type to the other Type, or (b) continues Offshore Rate Loans for a new Interest Period.

 

“Co-Syndication Agents” means each of JPMorgan, ▇▇▇▇▇ Fargo Bank and U.S. Bank, in each case in its capacity as a co-syndication agent for the Lenders hereunder.

 

“Covenant Change Date” means the first date following the Effective Date on which:

 

 

 

 

 

“Credit Extension” means and includes (a) the making of any Loan hereunder, and (b) the Issuance of any Letter of Credit hereunder.

 

“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

 

“Defaulting Lender” means, subject to Section 3.12(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within three (3) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Company in writing that such failure is the result of such ▇▇▇▇▇▇’s determination in good faith that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing and including the particular Default or Event of Default, if any) has not been satisfied, or (ii) pay to the Agent, any Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swing Line Loans or Fronted Offshore Currency Loans) within three (3) Business Days of the date when due, (b) has notified the Company, the Agent, any Issuer, any Swing Line Lender or any Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such ▇▇▇▇▇▇’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Agent or the Company, to confirm in writing to the Agent and the Company (such writing to be reasonably satisfactory to the Agent or the Company, as applicable) that it will comply with, and is financially able to meet, its prospective funding obligations hereunder (provided, that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) other than via an Undisclosed Administration, had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, or (iv) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interests in, or the exercise of control (outside of the context of a proceeding of the type described in this clause (d)) of, that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent demonstrable error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.12(b)) as of the date established therefor by the Agent in a written notice of such determination, which shall be delivered by the Agent to the Company, the Issuers, the Swing Line Lenders and each other Lender promptly following such determination.

 

“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

 

“Designated Non-cash Consideration” means the fair market value of non-cash consideration, including Related Business Assets and Equity Interests in a Restricted Subsidiary or a Person that is designated as a Restricted Subsidiary, received by the Company or a Restricted Subsidiary in connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to a certificate provided by a Responsible Officer of the Company and delivered to the Agent setting forth the basis of such valuation less the amount of cash or cash equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

 

“Discount Range” has the meaning specified in Schedule 2.22.

 

“Disposition” has the meaning specified in Section 8.02A.  “Dispose” has the meaning correlative thereto.

 

“Disqualified Institutions” means (a) those certain banks, financial institutions and other Persons (including Competitors and Affiliates of such Competitors), in each case identified by legal name in writing by the Company to the Agent at any time prior to March 1, 2018, (b) Competitors and Affiliates of such Competitors, in each case identified by legal name in writing by the Company to the Agent from time to time after the Effective Date, which designation shall become effective one day after the date that such written designation to the Agent is made available to the Lenders on the Platform (and the Agent hereby agrees to make such written designation so available promptly after receipt thereof from the Company), but which shall not apply retroactively to disqualify any Persons that have previously acquired an interest in the Loans and/or Commitments (but shall, for the avoidance of doubt, disqualify such Persons as to any future assignments and/or participations), and (c) any Person that is obviously (based solely on the similarity of the legal name of such Person to the name of a Person previously identified in writing to the Agent pursuant to clause (a) or clause (b) above) an Affiliate of any Person previously identified in writing to the Agent pursuant to clause (a) or clause (b) above; provided, that, a Person that would be a Disqualified Institution shall not constitute a Disqualified Institution if (i) such Person is a bank, financial institution, bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and no Disqualified Institution makes investment decisions for such Person, no investment vehicle managed or advised by a Disqualified Institution makes investment decisions for such Person and the managers of such Person are not involved with the equity investment decisions of any Disqualified Institution, and (ii) such Person does not share any information of the type subject to Section 11.08 with any Disqualified Institution or any investment vehicle managed or advised by any such Disqualified Institution, it being understood and agreed that the term “bona fide debt fund or investment vehicle” shall not include any Person that is separately identified in accordance with clause (a) or clause (b) above.

 

“Dollars”, “dollars” and “$” each mean lawful money of the United States.

 

“Dollar Equivalent” means, at any time, (a) as to any amount denominated in Dollars, the amount thereof at such time, and (b) as to any amount denominated in an Alternative Currency, the equivalent amount in Dollars as determined by the Agent or the applicable Issuer at such time on the basis of the Spot Rate for the purchase of Dollars with such Alternative Currency on the most recent Computation Date.

 

“Domestic Subsidiary” means a Subsidiary organized under the laws of (a) the United States or any political subdivision thereof, or any agency, department or instrumentality thereof, or (b) any state of the United States.

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“Effective Date” means April 3, 2018.

 

“Eligible Assignee” means (a) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (b) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000; provided, that, such bank is acting through a branch or agency located in the United States; (c) a Person that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit and that is an Affiliate of a Lender; (d) an Approved Fund; (e) a Lender; (f) any other entity approved by the Company (which approval shall not be required during the existence of an Event of Default) and the Agent, such approvals in each case not to be unreasonably withheld or delayed; and (g) the Company, solely in connection with a transaction permitted under Section 2.22 (provided, that, all Loans purchased by the Company pursuant to Section 2.22 shall automatically be cancelled and retired by the Company on the applicable settlement date of the relevant purchase (and may not remain outstanding or be resold)).

 

“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability or responsibility for damages (punitive or otherwise), investigation, cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief, or other type of relief, resulting from or based upon the presence, placements, discharge, emission or release (including intentional and unintentional, negligent and non-negligent, sudden or non-sudden, accidental or non-accidental, placements, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, or from any property, whether or not owned by the Company or any Subsidiary or taken as collateral, or in connection with any operations of the Company.

 

“Environmental Laws” means all federal, state, local or foreign (but only in those foreign jurisdictions where the Company and/or any Subsidiary has material operations) laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, land use and related health and safety matters, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances Control Act and the Emergency Planning and Community Right-to-Know Act.

 

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan, the liability with respect to which has not been satisfied; (d) the filing of a notice of intent to terminate a Pension Plan that has any Unfunded Pension Liability; (e) the treatment of a Pension Plan amendment that has any Unfunded Pension Liability as a termination under Section 4041 or 4041A of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; or (i) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.

 

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“Euro” means the single currency of the Participating Member States.

 

“Eurocurrency Reserve Percentage” means, for any day, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).  The Offshore Rate for each outstanding Offshore Rate Loan and for each outstanding Base Rate Loan the interest on which is determined by reference to the Offshore Base Rate, in each case, shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

 

“Event of Default” means any of the events or circumstances specified in Section 9.01.

 

“Exchange Act” means the Securities Exchange Act of 1934 and the regulations promulgated thereunder.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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, in the case of any Lender, its 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. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 11.24), or (ii) such Lender changes its Lending Office, except in each case to the extent that pursuant to Section 4.01(a)(ii), (a)(iii) or (c), 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 4.01(e), and (d) any U.S. federal withholding taxes imposed under FATCA.

 

“Executive Order” means Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)).

 

“Existing Credit Agreement” has the meaning specified in the recitals.

 

“Existing Lenders” has the meaning specified in the recitals.

 

“Existing Letters of Credit” means the existing letters of credit set forth on Schedules 1.01(b).

 

“Existing Loans” has the meaning specified in the recitals.

 

“Expiration Time” has the meaning specified in Schedule 2.22.

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date (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 and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that, (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Bank of America on such day on such transactions as determined by the Agent.

 

“Fee Letter” means that certain fee letter dated as of March 1, 2018 by and among Bank of America, MLPFS and the Company.

 

“Fitch” means Fitch Investors Service Inc., or its successors.

 

“Floor Plan Financing Facility” means any facility entered or to be entered into by the Company or any Restricted Subsidiary pursuant to which such Person may (a) incur indebtedness to purchase vehicles and/or related equipment from certain vendors for the prompt resale to customers in the ordinary course of business and (b) grant a security interest in such vehicles and/or related equipment to secure such borrowings.

 

“Foreign Lender” means any Lender that is not a U.S. Person.

 

“Foreign Subsidiary” means a Subsidiary which is not a Domestic Subsidiary.

 

“FRB” means the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.

 

“Fronted Offshore Currency Commitment” means, for any Fronting Lender for any Alternative Currency, the obligation of such Fronting Lender to make Fronted Offshore Currency Loans in such Alternative Currency not exceeding the Dollar Equivalent set forth in the applicable Offshore Currency Addendum, as such amount may be modified from time to time pursuant to the terms of this Agreement and such Offshore Currency Addendum.  Any Fronted Offshore Currency Commitment shall be a part of the Aggregate Revolving Commitment, rather than a separate, independent commitment.

 

“Fronted Offshore Currency Loan” means a loan made by a Fronting Lender to a Borrower pursuant to Section 2.07 and an Offshore Currency Addendum.

 

“Fronted Offshore Currency Rate” means, for any day for any Fronted Offshore Currency Loan, the per annum rate of interest determined under or as set forth in the applicable Offshore Currency Addendum.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof; (b) with respect to the Swing Line Lenders, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof; and (c) with respect to the Fronting Lenders, such Defaulting Lender’s Applicable Percentage of Fronted Offshore Currency Loans other than Fronted Offshore Currency Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“Fronting Lender” means any Lender (or any Affiliate, branch or agency thereof) with a Fronted Offshore Currency Commitment to the extent it is party to an Offshore Currency Addendum as the “Fronting Lender” thereunder.  If any agency, branch or Affiliate of such Lender shall be a party to an Offshore Currency Addendum, such agency, branch or Affiliate shall, to the extent of any commitment extended and any Loans made by it, have all the rights of such Lender hereunder; provided, that, such Lender shall, to the exclusion of such agency, branch or Affiliate, continue to have all the voting rights vested in it by the terms hereof.

 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

“GAAP” means, subject to Section 1.03, generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination, applied in a manner consistent with that used by the Company in its preparation of its audited financial statements for the fiscal year ended September 30, 2017 (except for changes to such application as are concurred on by the Company’s independent public accountants).

 

“Governmental Authority” means (a) the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank); and (b) the National Association of Insurance Commissioners.

 

“Guaranteed Cash Management Agreements” means, collectively, all Cash Management Agreements entered into between (a) the Company or any Subsidiary, and (b) any Lender (or any Affiliate thereof) (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason).

 

“Guaranteed Creditors” means and includes the Agent, the Lenders, the Issuers and each Person (other than the Company or any of its Subsidiaries) which is a party to a Rate Swap Document or a Guaranteed Cash Management Agreement.

 

“Guaranteed Obligations” means (a) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal and interest (whether such interest is allowed as a claim in a bankruptcy proceeding with respect to any Subsidiary Borrower or otherwise) of each Loan made under this Agreement to any Subsidiary Borrower, together with all other obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including indemnities, fees and interest thereon) of any Subsidiary Borrower to the Agent, any Issuer or any Lender now existing or hereafter incurred under, arising out of or in connection with this Agreement or any other Loan Documents and the due performance and compliance with all terms, conditions and agreements contained in the Loan Documents by any Subsidiary Borrower; and (b) the full and prompt payment when due (whether by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code or similar proceeding under applicable law, would become due) of any Subsidiary owing under any Rate Swap Document or Guaranteed Cash Management Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all terms, conditions and agreements contained therein.

 

“Guaranty Obligation” has the meaning specified in the definition of “Contingent Obligation”.

 

“Hazardous Materials” means all those substances that are regulated by, or which may form the basis of liability or a standard of conduct under, any Environmental Law, including any substance identified under any Environmental Law as a pollutant, contaminant, hazardous waste, hazardous constituent, special waste, hazardous substance, hazardous material, or toxic substance, or petroleum or petroleum-derived substance or waste.

 

“Honor Date” has the meaning specified in Section 3.03(b).

 

“Impacted Loans” has the meaning specified in Section 4.03.

 

“Incremental Amount” means, at any time, the total of (a) $500,000,000 minus (b) the sum of (i) the aggregate amount of all increases to the Revolving Credit Facility effected pursuant to Section 2.20 prior to such time, plus (ii) the aggregate amount of all increases to the Term Facility effected pursuant to Section 2.21 prior to such time, plus (iii) aggregate amount of all Add-On Term Loans established pursuant to Section 2.21 prior to such time.

 

“Indebtedness” of any Person means, without duplication, (a) all indebtedness for borrowed money and all Securitization Obligations; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than (i) trade and similar accounts payable and accrued expenses, in each case arising in the ordinary course of business, and (ii) accrued pension costs and other employee benefit and compensation obligations arising in the ordinary course of business); (c) all Contingent Obligations with respect to Surety Instruments (other than trade letters of credit); (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property); (f) all obligations with respect to capital leases; (g) all indebtedness referred to in subsections (a) through (f) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in subsections (a) through (g) above; provided, that, “Indebtedness” shall not include (i) Guaranty Obligations of the Company with respect to up to $10,000,000 of Indebtedness of Leasing Subsidiaries, (ii) Indebtedness owing to the Company by any Restricted Subsidiary or Indebtedness owing to any Restricted Subsidiary by the Company or another Restricted Subsidiary, (iii) any customary earnout or holdback in connection with any Permitted Acquisitions, (iv) any indebtedness incurred by the Company or any Restricted Subsidiary pursuant to any Floor Plan Financing Facility to the extent that it shall be non-interest bearing, (v) any obligation incurred by the Company or any Restricted Subsidiary in the ordinary course of business to make payments to a floor plan financier of a distributor of the Company or such Restricted Subsidiary as an incentive for such financier to provide more favorable payment terms to such distributor, (vi) any obligations of the Company or its Restricted Subsidiaries in respect of customer advances received and held in the ordinary course of business, (vii) performance bonds or performance guaranties (or bank guaranties or letters of credit in lieu thereof) entered into in the ordinary course of business, (viii) any indebtedness that has been defeased and/or discharged in accordance with its terms by the deposit of cash and/or cash equivalents, or (ix) interest, fees, premium or expenses, if any, relating to the principal amount of Indebtedness.  If any of the foregoing Indebtedness is limited to recourse against a particular asset or assets of such Person, the amount of the corresponding Indebtedness shall be equal to the lesser of the amount of such Indebtedness and the fair market value of such asset or assets at the date for determination of the amount of such Indebtedness.  For all purposes of this Agreement, (A) the Indebtedness of any Person shall include all recourse Indebtedness of any partnership or joint venture or limited liability company in which such Person is a general partner or a joint venturer or a member and as to which such Person is or may become directly liable, and (B) the amount of Indebtedness of the Company and its Restricted Subsidiaries hereunder shall be calculated without duplication of Guaranty Obligations of the Company or any Restricted Subsidiary in respect thereof.

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“Indemnitee” has the meaning specified in Section 11.04(b).

 

“Insolvency Proceeding” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors; or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

 

“Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four fiscal quarters ending on such date to (b) Cash Interest Expense for such period.

 

“Interest Payment Date” means (a) as to any Offshore Rate Loan, the last day of each Interest Period applicable to such Offshore Rate Loan; provided, that, if any Interest Period for an Offshore Rate Loan exceeds three months, the date that falls three months after the beginning of such Interest Period and after each Interest Payment Date thereafter is also an Interest Payment Date; and (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each calendar quarter.

 

“Interest Period” means (a) as to any Fronted Offshore Currency Loan, the Interest Period as set forth in, or determined in accordance with, the applicable Offshore Currency Addendum, and (b) as to any Offshore Rate Loan, the period commencing on the Borrowing Date of such Offshore Rate Loan or on the Conversion/Continuation Date on which the Loan is converted into or continued as an Offshore Rate Loan, and ending on the date one, two, three or six (or, if all applicable Lenders agree, twelve) months thereafter (or, solely in the case of Loans denominated in Mexican Pesos, 28, 91 or 182 days thereafter), in each case, subject to availability for the interest rate applicable to the relevant currency, as selected by a Borrower in its Notice of Borrowing or Notice of Conversion/Continuation, or such other period as required by the Company and agreed to by all applicable Lenders; provided, that:

 

 

 

 

 

 

“Interim Financial Statements” has the meaning specified in Section 6.11(a)(ii).

 

“Investment” means, with respect to any Person, any capital contribution (including by way of forgiveness or capitalization of Indebtedness, but excluding (x) any forgiveness of intercompany liabilities of a Restricted Subsidiary at the time of, or in contemplation of, a Material Disposition, and (y) the write-off or write-down of intercompany liabilities in cases where the tax benefit of such a write-off or write-down to the Person making such write-off or write-down would exceed the fair market value of such intercompany liabilities to such Person, as reasonably determined by the Company) made by such Person to any other Person, any loan or advance made by such Person to any other Person, the issuance by such Person of any Guaranty Obligation with respect to financial obligations of any other Person or any other transaction having substantially the same economic effect as any of the foregoing, excluding (i) any sale or lease of goods or the performance of any services on arm’s length terms, and (ii) the performance of services customarily provided by a parent company to its Restricted Subsidiaries in the ordinary course of business on terms substantially consistent with the past practice of the Company and its Restricted Subsidiaries.

 

“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Company or any of its Restricted Subsidiaries.

 

“IRS” means the Internal Revenue Service, and any Governmental Authority succeeding to any of its principal functions under the Code.

 

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

“Issuance Date” has the meaning specified in Section 3.01(a).

 

“Issue” means, with respect to any Letter of Credit, to issue or to extend the expiry of, or to renew or increase the amount of, such Letter of Credit; and the terms “Issued,” “Issuing” and “Issuance” have corresponding meanings.

 

“Issuer” means (a) with respect to the Existing Letters of Credit, Bank of America, and (b) with respect to any other Letter of Credit, Bank of America, JPMorgan, ▇▇▇▇▇ Fargo Bank, U.S. Bank, or any other Revolving Lender selected by the Company and approved by the Agent (such approval not to be unreasonably withheld or delayed) that has agreed to act as issuer of such Letter of Credit hereunder.

 

“Issuer Commitment” means, with respect to any Issuer, the maximum Stated Amount of Letters of Credit that such Issuer has committed to have outstanding at any time as set forth in a written agreement between the Company and such Issuer.  The Issuer Commitment of each Issuer is set forth opposite such Issuer’s name on Schedule 1.01(c), as such Issuer Commitment may be adjusted from time to time in accordance with this Agreement (it being understood and agreed that any increase or decrease in the Issuer Commitment of any Issuer shall only require the consent of the Company and such Issuer, with prompt written notice thereof by the Company to the Agent).  The Issuer Commitments of the Issuers are part of the Aggregate Revolving Commitment, rather than a separate, independent commitment.

 

“Issuer Documents” means, with respect to any Letter of Credit issued by an Issuer, the L/C Application relating thereto, and any other document, agreement and instrument entered into by such Issuer and the Company (or any Restricted Subsidiary) or in favor of such Issuer and relating to such Letter of Credit.

 

“Joint Lead Arrangers” means each of MLPFS (or any other registered broker-dealer organized in the United States that is wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the Effective Date), JPMorgan, WFS, and U.S. Bank, in each case in its capacity as a joint lead arranger and joint bookrunner for the Lenders hereunder.

 

“JPMorgan” means JPMorgan Chase Bank, N.A.

 

“Judgment Currency” has the meaning specified in Section 11.16.

 

“L/C Advance” means each Revolving Lender’s participation in any L/C Borrowing in accordance with its Revolving Percentage. All L/C Advances shall be denominated in Dollars.

 

“L/C Amendment Application” means an application form for amendment of outstanding standby or commercial documentary letters of credit as shall at any time be in use by the applicable Issuer, with such modifications as the Company and such Issuer may reasonably approve.

 

“L/C Application” means an application form for issuances of standby or commercial documentary letters of credit as shall at any time be in use by the applicable Issuer, with such modifications as the Company and such Issuer may reasonably approve.

 

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which shall not have been reimbursed on the date when made or converted into a Borrowing of Revolving Loans under Section 3.03(b). All L/C Borrowings shall be denominated in Dollars.

 

“L/C Commitment” means the commitment of the Issuers to Issue, and the commitment of the Revolving Lenders severally to participate in, Letters of Credit from time to time pursuant to Article III, in an aggregate amount not to exceed on any date the Aggregate Revolving Commitment.  The L/C Commitment is a part of the Aggregate Revolving Commitment, rather than a separate, independent commitment.

 

“L/C Obligations” means at any time the sum, without duplication, of (a) the Stated Amount of all outstanding Letters of Credit plus (b) the Dollar Equivalent amount of all unreimbursed drawings under all Letters of Credit, including all outstanding L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.05.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“L/C-Related Documents” means the Letters of Credit, the L/C Applications, the L/C Amendment Applications and any other document relating to any Letter of Credit, including any standard form document used by any Issuer for letter of credit issuances.

 

“Lead Agents” means, collectively, the Agent and each Co-Syndication Agent, and “Lead Agent” means either of them.

 

“Lease Assets” means, with respect to any lease, all of the following property and interests in property whether now existing or existing in the future or hereafter acquired or arising: (a) all vehicles or equipment manufactured, refurbished or sold by the Company or any of its Subsidiaries (and truck chassis, cement block boom trucks and similar vehicles manufactured or refurbished by third parties) and acquired by a Leasing Subsidiary in connection with such assets being leased to a third party; (b) all leases and other contracts or agreements relating to the lease financing by a customer of vehicles or equipment manufactured, refurbished or sold by the Company or any of its Subsidiaries; (c) all accounts receivable and other obligations incurred by lessees in connection with the foregoing, no matter how evidenced; (d) all rights to any vehicles or equipment subject to any of the foregoing after or in connection with creation of the foregoing, including returned or repossessed goods; (e) all reserves and credit balances with respect to any such lease contracts or agreements or lessees; (f) all letters of credit, security or guarantees for any of the foregoing; (g) all insurance policies or reports relating to any of the foregoing; and (h) all books and records relating to any of the foregoing.

 

“Leasing Subsidiary” means any Subsidiary (or partnership of which a Subsidiary of the Company is a general or limited partner) that is designated by the Board of Directors of the Company as a Leasing Subsidiary and that is exclusively engaged in Leasing Transactions and activities incidental thereto.  If at any time any Leasing Subsidiary should engage in a material transaction or activity other than those described above, it shall thereafter cease to be a Leasing Subsidiary for purposes of this Agreement.

 

“Leasing Transaction” means (a) the formation of Leasing Subsidiaries (whether in one or a series of related transactions); (b) the sale, lease or other disposition to a third party of Lease Assets or an interest therein; (c) the borrowing of money secured by Lease Assets; or (d) the sale or other disposition of Lease Assets or an interest therein to a Leasing Subsidiary followed by a financing transaction in connection with such sale or disposition of such Lease Assets (whether such financing transaction is effected by such Leasing Subsidiary or by a third party to whom such Leasing Subsidiary sells such Lease Assets or interests therein); provided, that, in each of the foregoing, the Company or its Restricted Subsidiaries receive or have received at least 95% of the aggregate sale price attributed to the vehicles and equipment that underlie the leases financed in such transaction.

 

“Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement, and their respective successors and assigns and, unless the context requires otherwise, includes each Swing Line Lender.

 

“Lending Office” means, as to any Lender or any Issuer, the office or offices of such Lender or such Issuer specified as its “Lending Office,” its “Domestic Lending Office” or its “Offshore Lending Office”, as the case may be, in such Lender’s Administrative Questionnaire or such Issuer’s Administrative Questionnaire, or such other office or offices as such Lender or such Issuer may from time to time notify the Company and the Agent; which office may include any agency, branch or Affiliate of such Person.

 

“Letter of Credit” means (a) the Existing Letters of Credit; and (b) any letter of credit Issued by an Issuer pursuant to Article III; provided, that, any commercial letter of credit issued hereunder shall provide solely for cash payment upon presentation of a sight draft.

 

“Letter of Credit Expiration Date” means the day that is seven days prior to the Revolving Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“Leverage Ratio” means, as of any date of determination, the ratio of (a) the total of (i)(A) all Indebtedness (including the principal amount of all Obligations other than any Obligations arising under any Cash Management Agreements) of the Company and its Restricted Subsidiaries determined on a consolidated basis as of such date (excluding Contingent Obligations in respect of Swap Contracts) and (B) to the extent included in calculating Contingent Obligations by operation of clause (A) of the last sentence of the definition thereof, outstanding guarantees of customer financing in the ordinary course of business and substantially consistent with past practice, minus (ii) the amount of Cash Collateral held pursuant to Sections 2.11(a), 3.07 and 3.11, if any, to (b) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which financial statements are available.

 

“Leverage Increase Period” has the meaning specified in Section 8.09.

 

“LIBOR” has the meaning specified in the definition of “Offshore Base Rate”.

 

“LIBOR Quoted Currency” means Dollars, Euro, Pounds Sterling and Japanese Yen, in each case as long as there is a published LIBOR rate with respect thereto.

 

“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).

 

“LIBOR Successor Rate” has the meaning specified in Section 4.08.

 

“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Offshore Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Agent determines in consultation with the Company).

 

“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment for security, charge or deposit arrangement, encumbrance, lien (statutory or other) or similar interest of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, any financing lease having substantially the same economic effect as any of the foregoing and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under an operating lease).

 

“Loan” means an extension of credit by a Lender to a Borrower under Article II or Article III in the form of a Revolving Loan, a Swing Line Loan, a Fronted Offshore Currency Loan, a Term Loan or an L/C Advance, as the context requires.

 

“Loan Documents” means this Agreement, the Notes, the Fee Letter, the L/C-Related Documents, any Loan Modification Agreement, any Offshore Currency Addendum, any Subsidiary Borrower Supplement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 3.11, and any other document delivered to the Agent or any Lender in connection herewith (but specifically excluding any Rate Swap Documents and any Guaranteed Cash Management Agreements).

 

“Loan Modification Offer” has the meaning specified in Section 11.19(a).

 

“Loan Modification Agreement” has the meaning specified in Section 11.19(a).

 

“local time” means (a) with respect to any Loan, the time of the office of the Agent or the applicable Fronting Lender to which payment of such Loan is to be made; and (b) with respect to any Letter of Credit, the time of the issuing office of the Issuer of such Letter of Credit.

 

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the FRB.

 

“Master Agreement” has the meaning specified in the definition of “Swap Contract”.

 

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, liabilities (actual or contingent), consolidated results of operations or consolidated financial condition of (i) the Borrowers, taken as a whole, or (ii) the Company and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the ability of any Borrower to perform its obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower of any Loan Document; provided, that, events, circumstances, changes, effects or conditions with respect to the Company and its Restricted Subsidiaries disclosed in any Form 10-K, Form 10-Q or Form 8-K filed by the Company with the SEC prior to September 30, 2017 shall not constitute a “Material Adverse Effect”.

 

“Material Disposition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in the disposition by the Company or a Restricted Subsidiary of (a) all or substantially all of the assets of a Restricted Subsidiary, or of any business or division of the Company or a Restricted Subsidiary; or (b) all of the Equity Interests of a Restricted Subsidiary (to the extent owned by the Company and/or its Restricted Subsidiaries), in each case under the foregoing clauses (a) and (b) to a Person that is not the Company or a Restricted Subsidiary.

 

“Material Domestic Subsidiary” means, at any time, each Domestic Subsidiary other than (a) any Domestic Subsidiary with total (gross) revenues (after eliminating intercompany revenues) for the preceding four fiscal quarter period less than 10% of the total (gross) revenues of the Company and its Domestic Subsidiaries (excluding Leasing Subsidiaries and Unrestricted Subsidiaries) for such period based upon the Company’s most recent annual or quarterly financial statements delivered to the Agent pursuant to Section 7.01; (b) any Leasing Subsidiary; (c) any Securitization Subsidiary; (d) any captive insurance company Subsidiary; and (e) any Unrestricted Subsidiary.

 

“Material Foreign Subsidiary” means, at any time, each Foreign Subsidiary other than (a) any Foreign Subsidiary with total (gross) revenues (after eliminating intercompany revenues) for the preceding four fiscal quarter period of 5% or less of the total (gross) revenues of the Company and its Subsidiaries (excluding Leasing Subsidiaries and Unrestricted Subsidiaries) for such period based upon the Company’s most recent annual or quarterly financial statements delivered to the Agent pursuant to Section 7.01; (b) any Leasing Subsidiary; (c) any Securitization Subsidiary; (d) any captive insurance company Subsidiary; and (e) any Unrestricted Subsidiary.

 

“Material Subsidiary” means a Material Domestic Subsidiary or a Material Foreign Subsidiary.

 

“Maturity Date” means the Revolving Termination Date, the Term A Maturity Date, or an Add-On Term Maturity Date, as the context may require.

 

“MLPFS” means ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.

 

“MNPI” means material non-public information with respect to the Company or any of its Subsidiaries, or the respective securities of any of the foregoing, as determined by the Company in its sole discretion.

 

“Moody’s” means ▇▇▇▇▇’▇ Investor Service Inc., or its successors.

 

“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes, is making, or is obligated to make contributions or, during the preceding three calendar years, has made, or been obligated to make, contributions.

 

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Company or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

“Non-Consenting Lender” means (a) any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01, and (ii) has been approved by the Required Lenders; (b) any Revolving Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Revolving Lenders in accordance with the terms of Section 11.01, and (ii) has been approved by the Required Revolving Lenders; (c) any Term Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Term Lenders in accordance with the terms of Section 11.01, and (ii) has been approved by the Required Term Lenders; (d) any Term A Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Term A Lenders in accordance with the terms of Section 11.01, and (ii) has been approved by the Required Term A Lenders; and (e) any Add-On Term Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Add-On Term Lenders in accordance with the terms of Section 11.01, and (ii) has been approved by the Required Add-On Term Lenders.

 

“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.

 

“Non-Surety L/Cs” means letters of credit which are not Surety L/Cs.

 

“Note” has the meaning specified in Section 2.02(b).

 

“Notice of Borrowing” means a notice substantially in the form of Exhibit A or such other form as may be approved by the Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of a Borrower.

 

“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit B or such other form as may be approved by the Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of a Borrower.

 

“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of any Borrower arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (b) all obligations of the Company or any Restricted Subsidiary owing under any Rate Swap Document or any Guaranteed Cash Management Agreement, in the case of each of clauses (a) and (b), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Borrower of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“Offshore Base Rate” means:

 

 

 

 

 

 

 

 

 

provided, that, (A) to the extent a comparable or successor rate is approved by the Agent in connection herewith, the approved rate shall be applied to the applicable Interest Period in a manner consistent with market practice; provided, further, that, to the extent such market practice is not administratively feasible for the Agent, such approved rate shall be applied to the applicable Interest Period as otherwise reasonably determined by the Agent and in a manner consistent with other syndicated credit facilities generally under which it acts as administrative agent, and (B) if the Offshore Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

 

“Offshore Currency” means at any time, Euro, Japanese Yen, Pounds Sterling, Australian Dollars, Mexican Pesos, Canadian Dollars or Swedish Krona and, from and after the time of such approval, any other currency requested by the Company and approved by each Revolving Lender in accordance with Section 2.08(e).

 

“Offshore Currency Addendum” means an addendum substantially in the form of Exhibit G with such modifications thereto as shall be approved by the applicable Fronting Lender, the Company and the Agent.

 

“Offshore Currency Loan” means any Offshore Rate Loan denominated in an Offshore Currency.

 

“Offshore Rate” means (a) for any Interest Period with respect to any Offshore Rate Loan comprising part of the same Borrowing or any Fronted Offshore Currency Loan, as applicable, a rate per annum determined by the Agent to be equal to the quotient obtained by dividing (i) the Offshore Base Rate for such Offshore Rate Loan for such Interest Period by (ii) one minus the Eurocurrency Reserve Percentage for such Offshore Rate Loan for such Interest Period, and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Offshore Rate, a rate per annum determined by the Agent to be equal to the quotient obtained by dividing (i) the Offshore Base Rate for such Base Rate Loan for such day by (ii) one minus the Eurocurrency Reserve Percentage for such Base Rate Loan for such day.

 

“Offshore Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Offshore Rate”, which may be denominated in Dollars or, in the case of a Revolving Loan, any Offshore Currency.  No Loans denominated in any Offshore Currency may be Base Rate Loans.

 

“Organization Documents” means, for any corporation or other organization, as applicable, the certificate or articles of incorporation or formation, the bylaws, limited partnership agreement, limited liability company agreement, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation and any shareholder rights agreement or other similar agreement.

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.07) and excluding, for the avoidance of doubt, Excluded Taxes.

 

“Participant” has the meaning specified in Section 11.07(c).

 

“Participant Register” has the meaning specified in Section 11.07(c).

 

“Participating Member States” means any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“PATRIOT Act” has the meaning specified in Section 11.18.

 

“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.

 

“PCAOB” means the Public Company Accounting Oversight Board.

 

“Pension Act” means the Pension Protection Act of 2006.

 

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company and any ERISA Affiliate, or with respect to which the Company or any ERISA Affiliate has any liability and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

“Percentage” means a Revolving Percentage or a Term Percentage, as the context requires.

 

“Permitted Acquired Debt” has the meaning specified in Section 8.05A(m).

 

“Permitted Acquisition” means (a) prior to the Covenant Change Date, an Acquisition that meets the following requirements: (i) such Acquisition shall not be a “hostile” acquisition and shall have been approved by the Board of Directors and/or shareholders (or equivalent) of the target of such Acquisition; (ii) no Default or Event of Default exists at the time of such Acquisition or will exist immediately thereafter; and (iii) upon giving effect to such Acquisition on a pro forma basis, the Company would be in compliance with the financial covenants set forth in Sections 8.09 and 8.10 as of the most recent fiscal quarter end for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b) (or, in the case of any such determination to be made prior to the delivery of financial statements for the fiscal quarter of the Company ended March 31, 2018, determined with reference to the Interim Financial Statements); and (b) from and after the Covenant Change Date, an Acquisition not prohibited by Section 8.03.

 

“Permitted Amendments” has the meaning specified in Section 11.19(a).

 

“Permitted Business” means any business similar in nature to any business conducted by the Company and its Restricted Subsidiaries on the Effective Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Company and its Restricted Subsidiaries on the Effective Date, in each case, as determined in good faith by the Company.

 

“Permitted Restricted Payments” means Restricted Payments in respect of one or more of the following:

 

 

 

 

 

 

 

 

 

“Permitted Securitization” means any program providing for (a) the sale, contribution and/or transfer to a Securitization Subsidiary, in one or more related and substantially concurrent transactions, of accounts receivable, general intangibles, chattel paper or other financial assets (including rights in respect of capitalized leases) and related rights of the Company or any Restricted Subsidiary in transactions intended to constitute (and opined by nationally-recognized outside legal counsel in connection therewith to constitute) true sales or true contributions to such Securitization Subsidiary, and (b) the provision of financing secured by the assets so sold, whether in the form of secured loans or the acquisition of undivided interests in such assets.

 

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

 

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or any ERISA Affiliate or any such plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

“Plan of Reorganization” has the meaning specified in Section 11.07(e)(iii).

 

“Platform” has the meaning specified in Section 7.02.

 

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Public Lender” has the meaning specified in Section 7.02.

 

“Purchase Money Debt” means Indebtedness (a) incurred to finance the purchase or construction (including additions and improvements thereto) of any assets (other than Equity Interests) of the Company or any Restricted Subsidiary, and (b) that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased or constructed or substantially similar assets leased or purchased from such lender or an affiliate of such lender under a master lease or similar agreement and proceeds of the foregoing, in either case, to the extent the principal amount thereof does not exceed 100% of the cost and to the extent the purchase or construction prices for such assets are or should be included in “addition to property, plant or equipment” in accordance with GAAP.

 

“Qualified Acquisition” means (a) a Permitted Acquisition with aggregate consideration of at least $100,000,000, or (b) a series of related Permitted Acquisitions in any twelve (12) month period, with aggregate consideration for all such Permitted Acquisitions of at least $100,000,000; provided, that, for any such Permitted Acquisition or series of related Permitted Acquisitions to qualify as a Qualified Acquisition, a Responsible Officer of the Company shall have delivered to the Agent a certificate (any such certificate, a “Qualified Acquisition Notice”) on or prior to the consummation of such Permitted Acquisition or the final closing date with respect to a series of related Permitted Acquisitions (i) certifying that the Permitted Acquisition or series of related Permitted Acquisitions meet the criteria set forth in the foregoing clause (a) or clause (b), as applicable, and (ii) notifying the Agent that the Company has elected to treat such Permitted Acquisition or series of related Permitted Acquisitions as a Qualified Acquisition.

 

“Qualified Acquisition Notice” has the meaning specified in the definition of “Qualified Acquisition”.

 

“Qualified Acquisition Pro Forma Determination” means, to the extent required in connection with determining the permissibility of any Permitted Acquisition or series of related Permitted Acquisitions that constitute a Qualified Acquisition, the determination required by clause (a)(iii) in the definition of “Permitted Acquisition.”

 

“Qualifying Bid” has the meaning specified in Schedule 2.22.

 

“Rate Determination Date” means, with respect to any Interest Period, two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Agent; provided, that, to the extent such market practice is not administratively feasible for the Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Agent).

 

“Rate Swap Documents” means, collectively, all Swap Contracts entered into between (a) the Company or any Subsidiary, and (b) any Lender (or any Affiliate thereof) (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason).

 

“Ratings” has the meaning specified on Schedule 1.01(a).

 

“Recipient” means the Agent, any Lender, any Issuer or any other recipient of any payment to be made by or on account of any obligation of any Borrower under any Loan Document.

 

“Refinancing Debt” means Indebtedness that refunds, refinances, renews, replaces or extends any Indebtedness permitted pursuant to the terms of this Agreement, whether involving the same or any other lender or creditor or group of lenders or creditors (including, with respect to any guarantee of Indebtedness, the refinancing of the guaranteed Indebtedness and the provision of a guarantee with respect to the new Indebtedness), but only to the extent that (a) the Refinancing Debt is subordinated to the Obligations to at least the same extent as the Indebtedness being refunded, refinanced, renewed, replaced or extended, if such Indebtedness was subordinated to the Obligations, (b) the Refinancing Debt is scheduled to mature either (i) no earlier than the Indebtedness being refunded, refinanced, renewed, replaced or extended, or (ii) at least 91 days after the then-latest Maturity Date, (c) the Refinancing Debt has an Average Life at the time of such refunding, refinancing, renewal, replacement or extension that is equal to or greater than the Average Life of the Indebtedness being refunded, refinanced, renewed, replaced or extended, (d) such Refinancing Debt is in an aggregate principal amount that is less than or equal to the sum of (i) the aggregate principal or accreted amount (in the case of any Indebtedness issued with original issue discount, as such) then outstanding under the Indebtedness being refunded, refinanced, renewed, replaced or extended, (ii) the amount of accrued and unpaid interest, if any, and premiums owed, if any, not in excess of preexisting prepayment provisions on such Indebtedness being refunded, refinanced, renewed, replaced or extended, and (iii) the amount of reasonable and customary fees, expenses and costs related to the incurrence of such Refinancing Debt, and (e) such Refinancing Debt is incurred by the same Person (or its successor) that initially incurred the Indebtedness being refunded, refinanced, renewed, replaced or extended, except that the Company may incur Refinancing Debt to refund, refinance, renew, replace or extend Indebtedness of a Restricted Subsidiary.

 

“Related Business Assets” means assets (other than cash or cash equivalents) used or useful in a Permitted Business; provided, that, any assets received by the Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, trustees, administrators, managers, agents, advisors and representatives of such Person and of such Person’s Affiliates.

 

“Remarketing Agreements” means agreements guaranteeing the residual or future resale value of products sold or leased by the Company or any Restricted Subsidiary.

 

“Reply Amount” has the meaning specified in Schedule 2.22.

 

“Reply Price” has the meaning specified in Schedule 2.22.

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.

 

“Required Add-On Term Lenders” means at any time Add-On Term Lenders under the applicable Add-On Term Facility having aggregate Add-On Term Percentages under such Term Facility in excess of 50%.

 

“Required Lenders” means at any time Lenders having aggregate Total Percentages in excess of 50%.

 

“Required Revolving Lenders” means at any time Revolving Lenders having aggregate Revolving Percentages in excess of 50%.

 

“Required Term A Lenders” means at any time Term A Lenders having aggregate Term A Percentages in excess of 50%.

 

“Required Term Lenders” means at any time Term Lenders having aggregate Term Percentages in excess of 50%.

 

“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule, guideline, regulation, ordinance or code or determination of an arbitrator or of a Governmental Authority (including all administrative orders and directed duties of, and written agreements with, any Governmental Authority), in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.

 

“Responsible Officer” means the chief executive officer, the president, the chief financial officer, the treasurer or the controller of a Borrower, and solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Borrower, or any other officer having substantially the same authority and responsibility, and, for purposes of Sections 7.03, 9.01(b), 9.01(c) and 9.01(i), shall also include the general counsel of the Company.

 

“Restricted Payment” means any of the following: (a) any dividend or other distribution declared and paid on the Equity Interests in the Company or on the Equity Interests in any Restricted Subsidiary of the Company that are held by, or declared and paid to, any Person other than the Company or a Restricted Subsidiary of the Company (other than (i) dividends, distributions or payments made solely in common Equity Interests in the Company, and (ii) dividends or distributions payable to the Company or a Restricted Subsidiary of the Company or to the holders of Equity Interests of a Restricted Subsidiary on a pro rata basis); (b) any payment made by the Company or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Equity Interests in the Company (including the conversion into, or exchange for, Indebtedness of any Equity Interests) other than any such Equity Interests owned by the Company or any Restricted Subsidiary (other than a payment made solely in common Equity Interests in the Company); (c) any payment made by the Company or any of its Restricted Subsidiaries (other than a payment made solely in common Equity Interests in the Company) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Indebtedness of the Company that is subordinate in right of payment to the Obligations (excluding any Indebtedness owed to the Company or any Restricted Subsidiary), except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof; and (d) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

 

“Restricted Subsidiary” means any Subsidiary that has not been designated as an “Unrestricted Subsidiary” in accordance with this Agreement.  From and after the Covenant Change Date, and automatically at the occurrence of the Covenant Change Date, without further action by any party, each Subsidiary of the Company shall be deemed to be, and shall be, from the Covenant Change Date until the termination of this Agreement, a Restricted Subsidiary.

 

“Return Bid” has the meaning specified in Schedule 2.22.

 

“Revolving Commitment” means, for any Revolving Lender, the amount set forth on Schedule 2.01 under the heading “Revolving Commitment”, as such amount may be reduced pursuant to Section 2.09, increased pursuant to Section 2.20, or reduced or increased as a result of one or more assignments pursuant to Section 11.07.

 

“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

 

“Revolving Credit Increase Effective Date” has the meaning specified in Section 2.20(b).

 

“Revolving Lender” means, at any time, any Lender that has a Revolving Commitment and/or outstanding Revolving Loans at such time.

 

“Revolving Loan” has the meaning specified in Section 2.01(a).

 

“Revolving Percentage” means, as to any Lender, the percentage which (a) the Revolving Commitment of such Lender (or, after termination of the Revolving Commitments, the principal amount of such ▇▇▇▇▇▇’s Revolving Loans plus such ▇▇▇▇▇▇’s participation interests in the principal amount of all Swing Line Loans, Fronted Offshore Currency Loans and the Stated Amount of all Letters of Credit) is of (b) the Aggregate Revolving Commitment (or, after termination of the Revolving Commitments, the Total Revolving Usage); provided, that, the Revolving Percentage shall be subject to adjustments as provided in Section 3.12.

 

“Revolving Termination Date” means the earlier to occur of (a) April 3, 2023, and (b) the date on which the Revolving Loans become due and payable pursuant to Section 9.02 and the Revolving Commitments terminate (or are reduced to zero) in accordance with the provisions of this Agreement.

 

“S&P” means S&P Global Ratings, a division of S&P Global Inc., or its successors.

 

“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Offshore Currency, same day or other funds as may be determined by the Agent or the applicable Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Offshore Currency.

 

“Sanctions” means any international economic sanction administered or enforced by the United States government (including, without limitation, OFAC) the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

 

“Sanctions Laws and Regulations” means any sanctions or requirements imposed by, or based upon the obligations or authorities set forth in, the PATRIOT Act, the Executive Order, the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control, and any similar law, regulation, or executive order enacted in the United States after the Effective Date.

 

“▇▇▇▇▇▇▇▇-▇▇▇▇▇” means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.

 

“Scheduled Unavailability Date” has the meaning specified in Section 4.08.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇, and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.

 

“Securitization Obligations” means the aggregate investment or claim held at any time by all purchasers, assignees or transferees of (or of interests in), or holders of obligations that are supported or secured by, accounts receivable, lease receivables and other rights to payment in connection with Permitted Securitizations.

 

“Securitization Subsidiary” means (a) a special purpose, bankruptcy remote, directly Wholly-Owned Subsidiary of the Company, or (b) a special purpose, bankruptcy remote, Wholly-Owned Subsidiary of any Subsidiary described in clause (a) which in each case is formed for the sole and exclusive purpose of engaging in activities in connection with the purchase, contribution, transfer, sale and financing of assets and related rights in connection with and pursuant to a Permitted Securitization.

 

“Specified Default” means (a) a Default under Section 9.01(a), (b) a Default under Section 9.01(f) or (g), in either case, with respect to the Company, or (c) any Event of Default.

 

“Spot Rate” for a currency means the rate determined by the Agent or the applicable Issuer to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., local time, on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided, that, the Agent or the applicable Issuer may obtain such spot rate from another financial institution designated by the Agent or such Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided, further, that, the applicable Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Restricted Subsidiary which are reasonably customary in an accounts receivable or other financial asset securitization transaction as determined in good faith by the Company, including guarantees by the Company or any Restricted Subsidiary of any of the foregoing obligations of the Company or a Restricted Subsidiary.

 

“Stated Amount” means, with respect to any Letter of Credit, the maximum Dollar Equivalent amount available to be drawn under such Letter of Credit during the remaining term thereof under any and all circumstances.

 

“Subsidiary” of a Person means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting stock, membership interests or other equity interests is owned or controlled directly or indirectly by such Person, or one or more of the Subsidiaries of such Person, or a combination thereof; provided, that, for the purposes of Articles VII and VIII hereof (and any definitions incorporated therein) and of calculating the Leverage Ratio and the Interest Coverage Ratio, “Subsidiary” shall exclude all Leasing Subsidiaries.  Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Company.

 

“Subsidiary Borrower” means any Wholly-Owned Subsidiary (other than any Securitization Subsidiary and any captive insurance company Subsidiary) that is a Restricted Subsidiary of the Company and designated as a Subsidiary Borrower by the Company pursuant to Section 2.19 with the consent of the Agent, which Subsidiary shall have delivered a Subsidiary Borrower Supplement in accordance with Section 2.19.

 

“Subsidiary Borrower Supplement” means a Subsidiary Borrower Supplement substantially in the form of Exhibit F.

 

“Supported Letter of Credit” means a Letter of Credit for which the Company has provided Backup Support in an amount equal to the sum of (a) the Stated Amount of such Letter of Credit, plus (b) all fees that will be payable with respect to such Letter of Credit assuming such Letter of Credit is drawn in full on the scheduled expiration date therefor.  If a Letter of Credit is denominated in a currency other than Dollars, then the amount specified in clause (a) shall be in the currency in which such Letter of Credit is denominated or other arrangements shall be made so that the Agent and the Issuers are satisfied, in their sole discretion, that the amount of Backup Support for such Letter of Credit is sufficient to account for currency fluctuations during the remaining term of such Letter of Credit.

 

“Surety Bonds” means all bonds issued for the account of the Company or any Restricted Subsidiary to assure the performance thereby (or to the extent issued in the ordinary course of business, any other Person) under any contract entered into in the ordinary course of business.

 

“Surety Instruments” means all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, shipside bonds, Surety Bonds, Remarketing Agreements and similar instruments.

 

“Surety L/Cs” means letters of credit which are issued for the account of the Company or any Restricted Subsidiary to provide credit support, in the ordinary course of business, for (a) a contract bid by such Person, (b) the performance by such Person under any contract, (c) any warranty extended by such Person, (d) the repayment of advance payments made to such Person, and (e) self-insurance or fully-fronted insurance with respect to the Company or any Restricted Subsidiary.

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.  Notwithstanding the foregoing, no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries shall be deemed a Swap Contract hereunder.

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s); and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined by the Company based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender).

 

“Swing Line Commitment” means, with respect to any Swing Line Lender at any time, the obligation of such Swing Line Lender to make Swing Line Loans pursuant to Section 2.05 at such time in an aggregate principal amount not to exceed the amount set forth opposite such Swing Line Lender’s name on Schedule 1.01(c), as such amount may be adjusted from time to time in accordance with this Agreement (it being understood and agreed that any increase or decrease in the Swing Line Commitment of any Swing Line Lender shall only require the consent of the Company and such Swing Line Lender, with prompt written notice thereof by the Company to the Agent).  The Swing Line Commitments of the Swing Line Lenders are a part of the Aggregate Revolving Commitment, rather than a separate, independent commitment.

 

“Swing Line Lender” means each of Bank of America and U.S. Bank, in each case in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

“Swing Line Loan” means a Loan denominated in Dollars made by a Swing Line Lender.

 

“Swing Line Rate” means, at any time, for any Swing Line Loan, (a) prior to a request by a Swing Line Lender for participation in such Swing Line Loan by the Revolving Lenders pursuant to Section 2.06(b), the rate agreed to by the applicable Borrower and such Swing Line Lender with respect to such Swing Line Loan, and (b) thereafter, the Base Rate plus the Applicable Base Rate Margin.

 

“Swing Line Sublimit” means an amount equal to the lesser of (a) $100,000,000, and (b) the Aggregate Revolving Commitment.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitment.

 

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.

 

“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Term A Commitment” means, as to any Term A Lender, such Term A Lender’s obligation to fund a Term A Loan pursuant to Section 2.01(b) and/or 2.21.  The amount of the Term A Commitment of each Term A Lender as of the Effective Date is set forth across from such ▇▇▇▇▇▇’s name on Schedule 2.01 under the heading “Term A Commitment”.  The aggregate principal amount of the Term A Commitments of all of the Term A Lenders as in effect on the Effective Date is THREE HUNDRED TWENTY FIVE MILLION DOLLARS ($325,000,000).

 

“Term A Facility” means, at any time, the aggregate principal amount of the Term A Loans of all Term A Lenders outstanding at such time.

 

“Term A Lender” means, at any time, any Lender that holds Term A Loans at such time.

 

“Term A Loans” has the meaning specified in Section 2.01(b).

 

“Term A Maturity Date” means the earlier to occur of (a) April 3, 2023, and (b) the date on which the Term A Loans become due and payable pursuant to Section 9.02.

 

“Term A Percentage” means, as to any Term A Lender, the percentage which (a) the Term A Commitment of such Lender (or, after the Effective Date, the principal amount of such Lender’s Term A Loan) is of (b) the aggregate amount of Term A Commitments (or, after the Effective Date, the aggregate principal amount of all Term A Loans).

 

“Term Commitment” means, as the context may require, either a Term A Commitment or an Add-On Term Commitment.

 

“Term Facility” means, at any time, the Term A Facility and each applicable Add-On Term Facility.

 

“Term Facility Increase Effective Date” has the meaning specified in Section 2.21(b)(i).

 

“Term Lender” means, at any time and as the context may require, a Term A Lender and/or an Add-On Term Lender.

 

“Term Loan” means, at any time and as the context may require, a Term A Loan and/or an Add-On Term Loan.

 

“Term Percentage” means, as the context may require, the Term A Percentage and/or the applicable Add-On Term Percentage.

 

“Threshold Amount” means, as of any date of determination, (a) prior to the Covenant Change Date, the greater of (i) $75,000,000, and (ii) 2.75% of Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries as of such date (determined as of the end of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 7.01(a) or (b) or, in the case of any such determination to be made prior to the delivery of financial statements for the fiscal quarter of the Company ended March 31, 2018, determined with reference to the Interim Financial Statements), and (b) from and after the Covenant Change Date, $100,000,000.

 

“Total Percentage” means, as to any Lender, the percentage which (a) the Revolving Commitment of such Lender (or, after the termination of the Revolving Commitments, the sum of the unpaid principal amount of the Revolving Loans of such Lender plus the participations of such Lender in all Letters of Credit, Swing Line Loans and Fronted Offshore Currency Loans) plus the unpaid principal amount of the Term Loans of such Lender is of (b) the sum of the Revolving Commitment (or, after the termination of the Revolving Commitments, the Total Revolving Usage) plus the unpaid principal amount of all Term Loans; provided, that, if and so long as any Lender is a Defaulting Lender, such Lender’s Total Percentage shall be deemed for purposes of this definition to be reduced to the extent of the defaulted amount, and the Total Percentage of the applicable Issuer, the applicable Swing Line Lender or the applicable Fronting Lender, as applicable, shall be deemed for purposes of this definition to be increased to such extent.

 

“Total Revolving Usage” means, at any time, the sum at such time of (a) the Dollar Equivalent principal amount of all outstanding Revolving Loans and Swing Line Loans plus (b) the amount of all L/C Obligations plus (c) the aggregate amount of all Fronted Offshore Currency Commitments.

 

“Trade Date” has the meaning specified in Section 11.07(e)(i).

 

“Type” of Loan means the status of such Loan as a Base Rate Loan or an Offshore Rate Loan.

 

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

“Undisclosed Administration” means, in relation to a Lender or any Person that directly or indirectly controls such Lender, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a Governmental Authority, supervisory authority or regulator under or based on the law in the country where such Lender or controlling Person is subject to home jurisdiction supervision if applicable law requires that such appointment not be disclosed and such appointment has not been disclosed; provided, that, in any such case, such appointment does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

“Unfunded Pension Liability” means, with respect to any Plan, the excess of such Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of such Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

“United States” and “U.S.” each means the United States of America.

 

“Unreimbursed Amount” has the meaning specified in Section 3.03(b).

 

“Unrestricted Subsidiary” means (a) any Subsidiary designated as such pursuant to a certificate provided by a Responsible Officer of the Company and delivered to the Agent, so long as neither the Company nor any of its Restricted Subsidiaries (i) provides credit support for, or guarantee of, any Indebtedness of such Subsidiary or any Subsidiary of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness, but excluding in the case of a Securitization Subsidiary any Standard Securitization Undertakings and further excluding other Indebtedness under which the lender has recourse to the Company or any Restricted Subsidiary or to any of their assets (A) that does not exceed $30,000,000 in the aggregate and/or (B) solely in circumstances customarily excluded by lenders from exculpation provisions and/or included in separate guaranty or indemnification agreements in non-recourse financings) or (ii) is directly or indirectly liable for any Indebtedness of such Subsidiary or any Subsidiary of such Subsidiary (except in the case of a Securitization Subsidiary any Standard Securitization Undertakings); and (b) any Subsidiary of an Unrestricted Subsidiary.

 

“U.S. Bank” means U.S. Bank National Association.

 

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” has the meaning specified in Section 4.01(e)(ii)(B)(III).

 

“Voting Stock” of any Person as of any date means the Equity Interests of such Person that is entitled to vote in the election of the Board of Directors of such Person.

 

“▇▇▇▇▇ Fargo Bank” means ▇▇▇▇▇ Fargo Bank, National Association.

 

“WFS” means ▇▇▇▇▇ Fargo Securities, LLC.

 

“Wholly-Owned Subsidiary” means any corporation in which (other than directors’ qualifying shares required by law) 100% of the capital stock of each class having ordinary voting power, and 100% of the capital stock of every other class, in each case (or, in the case of Persons other than corporations, membership interests or other equity interests), at the time as of which any determination is being made, is owned, beneficially and of record, by the Company, or by one or more of the other Wholly-Owned Subsidiaries of the Company, or both.

 

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.