Exhibit 10.2

EXECUTION VERSION

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND IS THE TYPE OF INFORMATION THAT THE REGISTRANT CUSTOMARILY TREATS AS PRIVATE. REDACTED INFORMATION IS INDICATED BY [***].

NINTH AMENDMENT TO

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

This NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of October 8, 2021 (the “Ninth Amendment Effective Date”) is entered into among Quanta Services, Inc., a Delaware corporation (the “Company”), the Australian Borrowers, the Canadian Borrower, the Lenders party hereto (including the New Lenders (as defined below)), Bank of America, N.A., as Administrative Agent, and, as applicable, the Swing Line Lenders party hereto and the L/C Issuers party hereto. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Existing Credit Agreement (as defined below) or, if not defined therein, in the Amended Credit Agreement (as defined below), as applicable.

RECITALS

WHEREAS, the Borrowers, the Guarantor, the Lenders and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, entered into that certain Fourth Amended and Restated Credit Agreement dated as of December 18, 2015 (as heretofore amended and modified, the “Existing Credit Agreement”);

WHEREAS, the Company has requested certain amendments to the Existing Credit Agreement as set forth in Section 1 below; and

WHEREAS, the Administrative Agent, the Lenders, and, as applicable, the Swing Line Lenders and the L/C Issuers, have agreed to provide the requested amendments, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.    Amendments. Effective as of the Ninth Amendment Effective Date, (a) the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth on the pages of the Existing Credit Agreement in the form of Annex A hereto (the Existing Credit Agreement, as affected and so amended by this Agreement, being referred to as the “Amended Credit Agreement”), (b) Schedules 1.01(b), 2.01, and 2.03 to the Existing Credit Agreement are hereby amended to read as provided on Schedules 1.01(b), 2.01, and 2.03 attached hereto, and the Revolving Commitments and Pro Rata Shares with respect to the Revolving Commitments of the Lenders shall be as set forth on Schedule 2.01 attached hereto and the Delayed Draw Term Loan Commitments of the Lenders and Pro Rata Shares with respect to the Delayed Draw Term Loan Commitments shall be as set forth on Schedule 2.01 attached hereto, (c) the Borrowers and each Lender shall effect such assignments, prepayments, borrowings and reallocations as are necessary to effectuate the modifications to Schedule 2.01 contemplated in this Agreement, in each case, such that, after giving effect thereto, each Lender will hold its respective Pro Rata Share of the Outstanding Amount of all Revolving Loans as of the Ninth Amendment Effective Date in accordance with Schedule 2.01 attached hereto (it being understood that (i) some or all of the Revolving Loans outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Agreement (A) may remain outstanding under the Amended Credit Agreement in accordance with the foregoing and (B) upon such effectiveness of this Agreement shall be deemed Revolving Loans outstanding under the Amended Credit Agreement and (ii) one or more Lenders that were party to the Existing Credit Agreement may be prepaid some or all of its Outstanding Amount of Revolving Loans to effectuate the modification to Schedule 2.01

contemplated by this Agreement), (d) Exhibits A, B, C-1, C-2, C-3, C-4, C-5, D, E, F, G, H and I to the Existing Credit Agreement are hereby amended to read as provided on Exhibits A, B, C-1, C-2, C-3, C-4, C-5, D, E, F, G, H and I attached hereto, and (f) a new Exhibit C-6 is hereby added to read as provided on Exhibit C-6 attached hereto. Except as expressly set forth herein, all Schedules and Exhibits to the Existing Credit Agreement will continue in their present forms as Schedules and Exhibits to the Amended Credit Agreement. Notwithstanding anything to the contrary in the Loan Documents, each Lender hereby waives any amounts otherwise payable to it pursuant to Section 3.05 of the Existing Credit Agreement or the Amended Credit Agreement incurred as a result of the early termination of any LIBOR Rate Loans or otherwise in connection with this Agreement or any assignments, prepayments, reallocations or rebalancing transactions in connection with this Agreement, including, without limitation, as contemplated by Section 1(c).

2.    New Lender Joinder.

(a)    Each Person that signs this Agreement as a Lender and that was not a Lender party to the Credit Agreement prior to the effectiveness of this Agreement (each a “New Lender”) (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (B) it meets all requirements of an Eligible Assignee under the Amended Credit Agreement (subject to receipt of such consents as may be required under the Amended Credit Agreement), (C) from and after the date hereof, it shall be bound by the provisions of the Amended Credit Agreement as a Lender thereunder and shall have the obligations of a Lender thereunder, (D) it has received a copy of the Amended Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Arrangers or any other Lender, (E) the Loan Documents set forth the terms of a commercial lending facility, (F) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into the this Agreement, the Amended Credit Agreement and the other Loan Documents as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth in the Amended Credit Agreement as may be applicable thereto, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and (G) if it is a Foreign Lender, any documentation required to be delivered by it pursuant to the terms of the Amended Credit Agreement has been delivered to the Administrative Agent; (ii) agrees that (A) it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, and (C) it will not assert a claim in contravention of Sections 2(a)(i)(E) and 2(a)(i)(F); and (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, by the terms thereof, together with such powers as are reasonably incidental thereto.

(b)    Each of the Administrative Agent and the Borrowers agrees that, upon the Ninth Amendment Effective Date, each New Lender shall (i) be a party to the Amended Credit Agreement and the other Loan Documents, (ii) be a “Lender” for all purposes of the Amended Credit Agreement and the other Loan Documents and (iii) be subject to and bound by the terms of the Amended Credit Agreement and the Loan Documents and have the rights and obligations of a Lender under the Amended Credit Agreement and the other Loan Documents.

 

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(c)    The address of each New Lender for purposes of all notices and other communications is as set forth on the Administrative Questionnaire delivered by such New Lender to the Administrative Agent.

3.    Conditions Precedent. This Agreement shall be effective upon satisfaction of the following conditions precedent:

(a)    Receipt by the Administrative Agent of counterparts of this Agreement duly executed by each of the Borrowers, the Guarantor, the Lenders (including the New Lenders), the Administrative Agent, each Swing Line Lender and each L/C Issuer.

(b)    Receipt by the Administrative Agent of (i) a Revolving Note executed by each Borrower for each New Lender that has requested a Revolving Note and (ii) a Delayed Draw Term Loan Note for each Lender that has requested a Delayed Draw Term Loan Note.

(c)    Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of the Company certifying that the conditions set forth in Section 4(d)(iv) have been satisfied.

(d)    Receipt by the Administrative Agent of favorable opinions of the general or deputy general counsel of the Loan Parties and legal counsel to the Loan Parties (including foreign legal counsel reasonably requested by the Administrative Agent), addressed to the Administrative Agent and each Lender, dated as of the date hereof, and in form and substance reasonably satisfactory to the Administrative Agent.

(e)    Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

(i)    copies of the Organization Documents of each Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the date hereof (or, in the case of Organization Documents of any such Borrower previously delivered and so certified to the Administrative Agent prior to the date hereof by the secretary or assistant secretary of such Borrower, a certification by the secretary or assistant secretary of such Borrower to the effect that since the date of such previous delivery and certification, there has been no change to such Organization Documents);

(ii)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower is a party; and

(iii)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.

 

3

(f)    the Administrative Agent shall have received: (i) audited consolidated balance sheets of each of the Company and the Acquired Company and related consolidated statements of income or operations, shareholders’ equity and cash flows, for each of the three most recently completed fiscal years ended at least 90 days before the Ninth Amendment Effective Date; (ii) as soon as available and in any event within 45 days after the end of each subsequent fiscal quarter, an unaudited consolidated balance sheet of each of the Company and the Acquired Company and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the elapsed interim period following the last completed fiscal year and for the comparable periods of the prior fiscal year (the “Quarterly Financial Statements”); and (iii) pro forma consolidated balance sheet and related consolidated statement of income or operations of the Company for the last completed fiscal year and for the latest interim period covered by the Quarterly Financial Statements, in each case, after giving effect to the Transactions (the “Pro Forma Financial Statements”); provided, that, (1) all of such financial statements shall be prepared in accordance with generally accepted accounting principles in the United States, (2) financial statements of the Acquired Company shall only be provided to the extent required by Rule 3-05 of Regulation S-X, (3) the Pro Forma Financial Statements shall only be provided to the extent required by Article 11 of Regulation S-X to be filed with the SEC prior to consummation of the Blattner Acquisition, and (4) the Company’s public filing of any required financial statements with the SEC shall satisfy the requirements of clauses (i) and (ii) of this clause (f). For the avoidance of doubt, the Administrative Agent acknowledges it has received all such audited financial statements of each of the Company and the Acquired Company for the fiscal years ended December 31, 2018, December 31, 2019 and December 31, 2020 and all such unaudited financial statements of each of the Company and the Acquired Company for the fiscal quarters ended March 31, 2021 and June 30, 2021.

(g)    the Lead Arrangers, in their capacities as lead arrangers of a 364-day unsecured bridge term loan facility under that certain Bridge Facility Commitment Letter (“Bridge Commitment Letter”), dated as September 1, 2021, among the Company, BofA Securities, Bank of America, Wells Fargo Securities, LLC and Wells Fargo Bank, National Association shall have received a certificate signed by a Responsible Officer of the Company certifying that the Delayed Draw Term Loan facility under the Amended Credit Agreement constitutes a “Qualifying Term Loan Facility” (as defined in the Bridge Commitment Letter) upon effectiveness of this Agreement.

(h)    Upon the reasonable request of any Lender made at least ten (10) days prior to the Ninth Amendment Effective Date, the Company shall have provided to such Lender (i) the documentation and other information so requested in order to comply with its ongoing obligations under applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, and (ii) a Beneficial Ownership Certification in relation to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case, at least five (5) days prior to the Ninth Amendment Effective Date.

(i)    Payment by the Borrowers of all accrued and unpaid fees and interest on the Revolving Loans immediately prior to the Ninth Amendment Effective Date.

(j)    Payment by the Company of all agreed fees and expenses (including reasonable attorney’s fees of the Administrative Agent).

 

4

For purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Ninth Amendment Effective Date specifying its objection thereto.

4.    Miscellaneous.

(a)    The Existing Credit Agreement, and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms, as affected and amended by this Agreement.

(b)    Upon the effectiveness of this Agreement, each reference in the Existing Credit Agreement to “this Agreement,” “hereunder” or words of like import shall mean and be a reference to the Amended Credit Agreement. This Agreement is a Loan Document.

(c)    Each Loan Party acknowledges and consents to all of the terms and conditions of this Agreement. Each of the Company and the other Borrowers (i) affirms all of its obligations under the Loan Documents and (ii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Existing Credit Agreement, the Amended Credit Agreement or the other Loan Documents.

(d)    The Loan Parties hereby represent and warrant as follows:

(i)    Each Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement;

(ii)    This Agreement has been duly executed and delivered by the Loan Parties and constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by (A) applicable Debtor Relief Laws and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity);

(iii)    No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Agreement, except for any filings that the Company or any of its Subsidiaries may be required to make with the Securities and Exchange Commission or pursuant to applicable stock exchange rules, which the Company expects to timely file following execution of this Agreement; and

(iv)    Immediately after giving effect to this Agreement and the transactions contemplated hereby, (A) the representations and warranties of the Loan Parties set forth in Article VI of the Amended Credit Agreement and in each other Loan Document are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material

 

5

Adverse Effect) as of such earlier date (and except that the representations and warranties contained in Sections 6.05(a) and (b) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 7.01(a) and (b), respectively, of the Amended Credit Agreement), and (B) no event has occurred and is continuing which constitutes a Default or an Event of Default.

(e)    This Agreement may be in the form of an Electronic Record and may be executed using Electronic Signatures (including facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Agreement may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Agreement. For the avoidance of doubt, the authorization under this Section 4(e) may include use or acceptance by the Administrative Agent and the Lenders of a manually signed paper Document which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Document converted into another format, for transmission, delivery and/or retention.

(f)    If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(g)    THIS AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT, THE PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

(h)    The terms of Sections 11.15 and 11.16 of the Amended Credit Agreement with respect to submission to jurisdiction, waiver of venue and waiver of right to trial by jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

BORROWERS:				QUANTA SERVICES, INC.,
				a Delaware corporation
				By:		/s/ Nicholas M. Grindstaff
				Name:		Nicholas M. Grindstaff
				Title:		Vice President – Finance and Treasurer
				QSI FINANCE (AUSTRALIA) PTY LTD, a corporation incorporated under the laws of the Commonwealth of Australia
				By:		/s/ Gerald Albert Ducey, Jr.
				Name:		Gerald Albert Ducey, Jr.
				Title:		Director
				By:		/s/ Scot P. Fluharty
				Name:		Scot P. Fluharty
				Title:		Director
				QSI FINANCE II (AUSTRALIA) PTY LTD, a corporation incorporated under the laws of the Commonwealth of Australia
				By:		/s/ Gerald Albert Ducey, Jr.
				Name:		Gerald Albert Ducey, Jr.
				Title:		Director
				By:		/s/ Scot P. Fluharty
				Name:		Scot P. Fluharty
				Title:		Director
				QSI FINANCE X (CANADA) ULC, a British Columbia corporation
				By:		/s/ Nicholas M. Grindstaff
				Name:		Nicholas M. Grindstaff
				Title:		President and Treasurer

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

ADMINISTRATIVE AGENT:				BANK OF AMERICA, N.A.,
				as Administrative Agent
				By:		/s/ Anthony W. Kell
				Name:		Anthony W. Kell
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

LENDERS:				BANK OF AMERICA, N.A.,
				as a Lender, Domestic Swing Line Lender and a L/C Issuer
				By:		/s/ Adam Rose
				Name:		Adam Rose
				Title:		SVP

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BANK OF AMERICA, N.A., CANADA BRANCH,
				as a Lender and Canadian Swing Line Lender
				By:		/s/ Medina Sales de Andrade
				Name:		Medina Sales de Andrade
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BANK OF AMERICA, N.A., AUSTRALIA BRANCH,
				as a Lender and Australian Swing Line Lender
				By:		/s/ Ari Rubin
				Name:		Ari Rubin
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				WELLS FARGO BANK, NATIONAL ASSOCIATION,
				as a Lender and an L/C Issuer
				By:		/s/ Greg Strauss
				Name:		Greg Strauss
				Title:		Managing Director

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				PNC BANK, NATIONAL ASSOCIATION,
				as a Lender and an L/C Issuer
				By:		/s/ Madison Langman
				Name:		Madison Langman
				Title:		Assistant Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				PNC BANK CANADA BRANCH,
				as a Lender
				By:		/s/ Caroline M. Stade
				Name:		Caroline M. Stade
				Title:		SVP Corporate Banking

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				TRUIST BANK,
				as a Lender and an L/C Issuer
				By:		/s/ William P. Rutkowski
				Name:		William P. Rutkowski
				Title:		Director

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				JPMORGAN CHASE BANK, N.A.,
				as a Lender
				By:		/s/ Jonathan Bennett
				Name:		Jonathan Bennett
				Title:		Executive Director

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BANK OF MONTREAL,
				as a Lender and an L/C Issuer
				By:		/s/ Michael Gift
				Name:		Michael Gift
				Title:		Managing Director

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
				as a Lender
				By:		/s/ Stephen Johnson
				Name:		Stephen Johnson
				Title:		Managing Director
				By:		/s/ Miriam Trautmann
				Name:		Miriam Trautmann
				Title:		Senior Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BNP PARIBAS,
				as a Lender and an L/C Issuer
				By:		/s/ Karim Remtoula
				Name:		Karim Remtoula
				Title:		Vice President
				By:		/s/ Nicolas Doche
				Name:		Nicolas Doche
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				CITIZENS BANK, N.A.,
				as a Lender
				By:		/s/ Karmyn Paul
				Name:		Karmyn Paul
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				MUFG BANK, LTD. (f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd.),
				as a Lender
				By:		/s/ Meng Zhang
				Name:		Meng Zhang
				Title:		Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				HSBC BANK USA, N.A.,
				as a Lender
				By:		/s/ Jaime Mariano
				Name:		Jaime Mariano
				Title:		Senior Vice President #21440

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				U.S. BANK NATIONAL ASSOCIATION,
				as a Lender
				By:		/s/ Jonathan F. Lindvall
				Name:		Jonathan F. Lindvall
				Title:		Senior Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				CANADIAN IMPERIAL BANK OF COMMERCE,
				as a New Lender
				By:		/s/ Andrew Campbell
				Name:		Andrew Campbell
				Title:		Authorized Signatory
				By:		/s/ Albert Comas
				Name:		Albert Comas
				Title:		Authorized Signatory

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				ZIONS BANCORPORATION, N.A. (d/b/a Amegy Bank),
				as a Lender
				By:		/s/ Cody Biller
				Name:		Cody Biller
				Title:		Executive Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

				BOKF, NA (d/b/a Bank of Texas),
				as a Lender
				By:		/s/ Nick Jones
				Name:		Nick Jones
				Title:		Assistant Vice President

 

QUANTA SERVICES, INC.

NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

ANNEX A

Amended Credit Agreement

[see attached.]

ANNEX A

CUSIP Number: 98305LAJ8

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of December 18, 2015

among

QUANTA SERVICES, INC.

and

CERTAIN SUBSIDIARIES OF THE COMPANY,

as Borrowers,

BANK OF AMERICA, N.A.,

as Administrative Agent, Domestic Swing Line Lender and L/C Issuer,

BANK OF AMERICA, N.A., Australia Branch

as Australian Swing Line Lender,

BANK OF AMERICA, N.A., Canada Branch

as Canadian Swing Line Lender

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

PNC BANK, NATIONAL ASSOCIATION

and

TRUIST BANK,

as Co-Syndication Agents,

BANK OF MONTREAL

and

JPMORGAN CHASE BANK, N.A.,NATIONAL ASSOCIATION

and

BANK OF MONTREAL,

Asas Co-Documentation Agents

and

THE OTHER LENDERS PARTY HERETO

BOFA SECURITIES, INC.,

WELLS FARGO SECURITIES, LLC,

PNC CAPITAL MARKETS LLC,

and

TRUIST SECURITIES, INC.,

and

WELL FARGO BANK, NATIONAL ASSOCIATION,

as Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS					1
Section 1.01		Defined Terms			1
Section 1.02		Other Interpretive Provisions			4049
Section 1.03		Accounting Terms			4050
Section 1.04		Rounding			4150
Section 1.05		References to Agreements and Laws			4151
Section 1.06		Times of Day			4251
Section 1.07		Letter of Credit Amounts			4251
Section 1.08		[Reserved]			4251
Section 1.09		Exchange Rates; Currency Equivalents			4251
Section 1.10		Additional Alternative Currencies			4252
Section 1.11		Change of Currency			4453
Section 1.12		Limitation on Obligations of Foreign Obligors			4454
Section 1.13		Rates			4454
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS					4554
Section 2.01		Revolving Loans			4554
Section 2.02		Borrowings, Conversions and Continuations of Loans			4555
Section 2.03		Letters of Credit			5060
Section 2.04		Swing Line Loans			6071
Section 2.05		Prepayments			6575
Section 2.06		Termination or Reduction of Commitments			6777
Section 2.07		Repayment of Loans			6778
Section 2.08		Interest and Default Rate			6880
Section 2.09		Fees			6981
Section 2.10		Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate			6982
Section 2.11		Evidence of Debt			7082
Section 2.12		Payments Generally; Administrative Agent’s Clawback			7183
Section 2.13		Sharing of Payments by Lenders			7385
Section 2.14		Cash Collateral			7486
Section 2.15		Defaulting Lenders			7587
Section 2.16		Joint and Several Liability			7789
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY					7891
Section 3.01		Taxes			7891
Section 3.02		Illegality			8395
Section 3.03		Inability to Determine Rates			8497
Section 3.04		Increased Cost; Reserves on EurocurrencyAlternative Currency Term Rate Loans			85101
Section 3.05		Funding Losses			87103
Section 3.06		Matters Applicable to all Requests for Compensation			87103
Section 3.07		LIBOR Successor Rate			88104
Section 3.083.07		Survival			89105
ARTICLE IV GUARANTY					89106
Section 4.01		The Guaranty			89106
Section 4.02		Obligations Unconditional			90106
Section 4.03		Reinstatement			91107

 

i

Section 4.04		Certain Additional Waivers			91107
Section 4.05		Remedies			91107
Section 4.06		Guarantee of Payment; Continuing Guarantee			91108
Section 4.07		Keepwell			91108
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS					92108
Section 5.01		Conditions of Initial Credit Extension			92108
Section 5.02		Conditions to all Credit Extensions			94111
Section 5.03		Conditions to the Funding of the Delayed Draw Term Loan and the Acquisition Revolving Loan			111
ARTICLE VI REPRESENTATIONS AND WARRANTIES					95114
Section 6.01		Existence, Qualification and Power			95114
Section 6.02		Authorization; No Contravention			96114
Section 6.03		Governmental Authorization; Other Consents			96114
Section 6.04		Binding Effect			96114
Section 6.05		Financial Statements; No Material Adverse Effect			96115
Section 6.06		Litigation			97115
Section 6.07		No Default			97116
Section 6.08		Ownership of Property; Liens			97116
Section 6.09		Environmental Compliance 97[Reserved]			116
Section 6.10		Insurance			98117
Section 6.11		Taxes			98117
Section 6.12		ERISA Compliance			99117
Section 6.13		Subsidiaries 100[Reserved]			118
Section 6.14		Margin Regulations; Investment Company Act			100118
Section 6.15		Disclosure			100119
Section 6.16		Compliance with Laws			100119
Section 6.17		Intellectual Property; Licenses, Etc 101[Reserved]			119
Section 6.18		Solvency			101119
Section 6.19		Labor Matters			101120
Section 6.20		Subordination			101120
Section 6.21		OFAC			101120
Section 6.22		Representations as to Foreign Obligors			101120
Section 6.23		Anti-Corruption Laws			102121
Section 6.24		Affected Financial Institution			102121
Section 6.25		Covered Party			103121
ARTICLE VII AFFIRMATIVE COVENANTS					103121
Section 7.01		Financial Statements			103121
Section 7.02		Certificates; Other Information			103122
Section 7.03		Notices			105124
Section 7.04		Payment of Obligations			106125
Section 7.05		Preservation of Existence, Etc			106125
Section 7.06		Maintenance of Properties			107125
Section 7.07		Maintenance of Insurance			107126
Section 7.08		Compliance with Laws			107126
Section 7.09		Books and Records			107126
Section 7.10		Inspection Rights			107126
Section 7.11		Use of Proceeds			108127
Section 7.12		ERISA Compliance			108127
Section 7.13		Approvals and Authorizations			108127

 

ii

Section 7.14		Anti-Corruption Laws			108127
ARTICLE VIII NEGATIVE COVENANTS					108127
Section 8.01		Liens			109128
Section 8.02		Acquisitions			111130
Section 8.03		Indebtedness			111131
Section 8.04		Fundamental Changes			113132
Section 8.05		Dispositions			114133
Section 8.06		Restricted Payments			114133
Section 8.07		Change in Nature of Business			115134
Section 8.08		Transactions with Affiliates and Insiders			115134
Section 8.09		[Reserved.]			116135
Section 8.10		Use of Proceeds			116135
Section 8.11		Financial Covenants			116135
Section 8.12		Prepayment of Other Indebtedness, Etc 116Certain Amendments			135
Section 8.13		Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity			117136
Section 8.14		Ownership of Subsidiaries 117[Reserved]			136
Section 8.15		Sale Leasebacks 117[Reserved]			137
Section 8.16		Sanctions			118137
Section 8.17		Anti-Corruption Laws			118137
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES					118137
Section 9.01		Events of Default			118137
Section 9.02		Remedies Upon Event of Default			120139
Section 9.03		Application of Funds			121140
ARTICLE X ADMINISTRATIVE AGENT					122141
Section 10.01		Appointment and Authority of Administrative Agent			122141
Section 10.02		Delegation of Duties			122141
Section 10.03		Exculpatory Provisions			122142
Section 10.04		Reliance by Administrative Agent			123143
Section 10.05		Non-Reliance on Administrative Agent, Arrangers and Other Lenders			124143
Section 10.06		Rights as a Lender			124144
Section 10.07		Resignation of Administrative Agent			124144
Section 10.08		Administrative Agent May File Proofs of Claim			126145
Section 10.09		No Other Duties, Etc			127146
Section 10.10		SecuredGuaranteed Swap Agreements and SecuredGuaranteed Treasury Management Agreements			127146
Section 10.11		Recovery of Erroneous Payments			127147
ARTICLE XI MISCELLANEOUS					127147
Section 11.01		Amendments, Etc			127147
Section 11.02		Notices and Other Communications; Facsimile Copies			130149
Section 11.03		No Waiver; Cumulative Remedies; Enforcement			132151
Section 11.04		Expenses; Indemnification; Damage Waiver			132152
Section 11.05		Payments Set Aside			134154
Section 11.06		Successors and Assigns			135154
Section 11.07		Confidentiality			141160
Section 11.08		Set-off			142162

 

iii

Section 11.09		Interest Rate Limitation			142162
Section 11.10		Counterparts			143162
Section 11.11		Integration			143162
Section 11.12		Survival of Representations and Warranties			143163
Section 11.13		Severability			143163
Section 11.14		Replacement of Lenders			143163
Section 11.15		Governing Law			144164
Section 11.16		Waiver of Right to Trial by Jury			145165
Section 11.17		Designated Senior Indebtedness			145165
Section 11.18		USA Patriot Act Notice			145165
Section 11.19		Judgment Currency			146165
Section 11.20		No Advisory or Fiduciary Relationship			146166
Section 11.21		Electronic Execution			146166
Section 11.22		Cashless Settlement			147167
Section 11.23		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			147167
Section 11.24		ERISA Representation			148167
Section 11.25		Acknowledgement Regarding Any Supported QFCs			149168
Section 11.26		Appointment of Company			149169
Section 11.27		ENTIRE AGREEMENT			149169

 

iv

SCHEDULES

 

EXHIBITS

 

 

v

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 18, 2015 among QUANTA SERVICES, INC., a Delaware corporation (the “Company”), QSI Finance (Australia) Pty Ltd (ABN 40 164 312 047), a corporation incorporated under the laws of the Commonwealth of Australia (the “Australian FinanceCo Borrower”), QSI Finance II (Australia) Pty Ltd (ABN 21 168 351 022), a corporation incorporated under the laws of the Commonwealth of Australia (together with the Australian FinanceCo Borrower, the “Australian Borrowers” and each an “Australian Borrower”), and QSI Finance X (Canada) ULC, a British Columbia corporation (the “Canadian Borrower”, and the Australian Borrowers and the Canadian Borrower, together with the Company, the “Borrowers” and each a “Borrower”), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Domestic Swing Line Lender and an L/C Issuer, and amends and restates that certain Third Amended and Restated Credit Agreement, dated as of October 30, 2013 (as amended or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), among the Borrowers, the guarantors from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent, which Existing Credit Agreement amended and restated that certain Second Amended and Restated Credit Agreement, dated as of August 2, 2011 among the Company, the guarantors from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent, which agreement amended and restated that certain Amended and Restated Credit Agreement dated as of June 12, 2006, among the Company, the guarantors from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent, which agreement amended and restated that certain Credit Agreement dated as of December 19, 2003, among the Company, the guarantors from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent.

The Borrowers have requested that the Lenders provide credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01 Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below:

“Acquired Company” means Blattner Holding Company, a Minnesota corporation.

“Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of (a) all or substantially all of the Property of another Person or a division, line of business or other business unit of such Person or (b) a majority of the Voting Stock or other controlling ownership interest in another Person, in each case, whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise; provided however, that with respect to the Company and its Subsidiaries, no such transaction solely between or among the Company and/or any of its Subsidiaries shall be deemed to constitute an Acquisition.

“Acquisition Agreement” means that certain Agreement and Plan of Merger by and among the Acquired Company, the Company and the Merger Sub.

“Acquisition Agreement Representations” has the meaning specified in Section 5.03(d).

“Acquisition Closing Date” means the Closing Date (as defined in the Acquisition Agreement).

“Acquisition Revolving Loan” has the meaning specified in Section 7.11(a).

“Act” has the meaning specified in Section 11.18.

“Administrative Agent” means Bank of America (or any of its designated branch offices or affiliates) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent Fee Letter” means the letter agreement, dated November 10, 2015, among the Company, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Company and the Lenders.

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

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Agent Parties” has the meaning set forth in Section 11.02(c).

“Aggregate Revolving Commitments” means the aggregate amount of the Revolving Commitments of all the Lenders. The amount of the Aggregate Revolving Commitments in effect on the SixthNinth Amendment Effective Date is Two Billion FiveSix Hundred and TenForty Million Dollars $2,510,000,0002,640,000,000 .

“Agreed Currency” means Dollars or any Alternative Currency, as applicable.

“Agreement” means this Fourth Amended and Restated Credit Agreement, as amended, modified, supplemented and extended from time to time.

“Agreement Currency” has the meaning specified in Section 11.19.

“AIG” means, collectively, American Home Assurance Company, National Union Fire Insurance Company of Pittsburgh, Pa. and The Insurance Company of the State of Pennsylvania.

 

2

“Alternative Currency” means (a) in the case of any Revolving Loan, each of AUD – Australian dollar; CAD – Canadian dollar; EUR – Euro; GBP – British PoundSterling; and JPY – Japanese Yen; and each other currency (other than Dollars) that is approved in accordance with Section 1.10, (b) in the case of any Letter of Credit, each of AUD – Australian dollar; CAD – Canadian dollar; EUR – Euro; MXN – Mexican Peso; GBP – British PoundSterling; JPY – Japanese Yen; SGD – Singapore dollar; NOK—Norwegian Krone; SEK—Swedish Krona; and UAE—United Arab Emirates dirham, and each other currency (other than Dollars) that is approved in accordance with Section 1.10 and (c) in the case of any Swing Line Loan, each of AUD – Australian dollar and CAD – Canadian dollar; provided, that, for each Alternative Currency, such requested currency is an Eligible Currency; provided, however, that if the interest rate with respect to any Alternative Currency becomes unavailable for any reason, such Alternative Currency shall not be considered an Alternative Currency hereunder until such time as an interest rate with respect to such Alternative Currency is agreed upon by the Company and the Required Revolving Lenders in accordance with the terms thereof.

“Alternative Currency Authority” means, with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator.

“Alternative Currency Conforming Changes” means, with respect to the use, administration of or any conventions associated with SONIA, BBSY, EURIBOR, TIBOR, the CDOR Rate or any proposed Successor Rate for an Alternative Currency, as applicable, any conforming changes to the definitions of “SONIA”, “BBSY”, “EURIBOR”, “CDOR Rate”, “TIBOR”, “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent (in consultation with the Company), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Alternative Currency (or, if the Administrative 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 rate for such Alternative Currency exists, in such other manner of administration as the Administrative Agent (in consultation with the Company) determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

“Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:

(a) denominated in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; and

(b) denominated in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.10(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.10(c);

provided, that, (i) if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement and (ii) any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.

 

3

“Alternative Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as reasonably determined by the Administrative Agent, the applicable Swing Line Lender or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date)by reference to Bloomberg (or such other publicly available service for displaying exchange rates), to be the exchange rate for the purchase of such Alternative Currency with Dollars. at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided, that, if no such rate is available, the “Alternative Currency Equivalent” shall be determined by the Administrative Agent, the applicable Swing Line Lender or the applicable L/C Issuer, as the case may be, using any reasonable method of determination it deems appropriate in its reasonable discretion (and such determination shall be conclusive absent manifest error).

“Alternative Currency L/C Issuer” means (a) Bank of America, (b) Bank of Montreal and, (c) BNP Paribas, and (d) any other Lender selected by the Company pursuant to Section 2.03(m) (provided, that, (x) no Lender shall be required to become an Alternative Currency L/C Issuer pursuant to this clause (cd ) without such Lender’s consent and (y) at any point in time, there shall not be more than oneany additional Alternative Currency L/C Issuer pursuant to this clause (cd ) except with the Administrative Agent’s approval in its sole discretion), in each case, (i) including acting through any of its branches or affiliates and (ii) in its capacity as issuer of Letters of Credit denominated in Alternative Currencies hereunder, or any successor issuer of Letters of Credit denominated in Alternative Currencies hereunder, and “Alternative Currency L/C Issuer” means any one of them.

“Alternative Currency Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.

“Alternative Currency Sublimit” means, as of any date of determination, an amount equal to the Aggregate Revolving Commitments. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit Extension:

(a) denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (“EURIBOR”) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period;

(b) denominated in Canadian Dollars, the rate per annum equal to the Canadian Dollar Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (the “CDOR Rate”) on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day) with a term equivalent to such Interest Period;

(c) denominated in Yen, the rate per annum equal to the Tokyo Interbank Offer Rate (“TIBOR”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the Rate Determination Date with a term equivalent to such Interest Period;

 

4

(d) denominated in Australian dollars, the rate per annum equal to the Bank Bill Swap Reference Bid Rate (“BBSY”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the Rate Determination Date with a term equivalent to such Interest Period; and

(e) denominated in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.10(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.10(c);

provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 2010, and all similar laws, rules, and regulations of any jurisdiction, including the UK Bribery Act 2010, applicable to the Borrowers or their Subsidiaries from time to time concerning or relating to bribery or corruption.

“Applicable Foreign Obligor Documents” has the meaning specified in Section 6.22.

“Applicable Rate” means, (a) with respect to Incremental Term Loans, the percentage(s) per annum set forth in the Incremental Term Facility Amendment entered into in connection with the applicable Incremental Term Facility, and (b) with respect to Revolving Loans, the Delayed Draw Term Loans, the Letter of Credit fees set forth in Section 2.03(h), and the commitment fee set forth in Section 2.09(a), the following percentages per annum, based upon the numerically lower of (i) the Pricing Level corresponding to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a) and (ii) the Pricing Level corresponding to the Company’s Debt Rating as of such date of determination:

 

5

Pricing Level		Debt Rating		Consolidated Leverage Ratio		Delayed Draw Term Loans— LIBOR Rate Loans				Commitment FeeDelayed Draw Term Loans—Base Rate Loans				Revolving Loans – LIBOR Rate Loans and Alternative Currency Loans; Standby or/ Commercial Letter of Credit Fee; Swing Line Loans				Performance Letter of Credit FeeRevolving Loans – Base Rate Loans				Eurocurrency Rate Revolving Loans and Swing Line LoansPerformance Letter of Credit Fee				Base Rate LoansCommitment Fee
1		> BBB+ / Baa1		> 2.50< 0.75:1.01.00			1.000	%			0.4250.000	%			2.0001.125	%			1.1500.125	%			2.0000.675	%			1.0000.10	%
2		BBB / Baa2		< 2.50:1.0 but ³ 1.70.75:1.01.00 but < 1.25:1.00			1.125	%			0.3750.125	%			1.7501.250	%			1.0000.250	%			1.7500.750	%			0.7500.125	%
3		BBB- / Baa3		< 1.75:1.0 but ³ 1.25:1.01.00 but < 1.75:1.00			1.250	%			0.3500.250	%			1.5001.375	%			0.8500.375	%			1.5000.825	%			0.5000.175	%
4		BB+ / Ba1		< 1.2> 1.75:1.01.00 but ³ 0.75< 2.50:1.01.00			1.375	%			0.3000.375	%			1.3751.500	%			0.8250.500	%			1.3750.975	%			0.3750.225	%
5		< BB / Ba2		< 0.75> 2.50:1.0			1.625	%			0.2750.625	%			1.1251.750	%			0.6750.750	%			1.125	%			0.1250.275	%

Any increase or decrease in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall become effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next publicly announced change in the Debt Rating. Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(a); provided, however, that (x) if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 15 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 7.02(a), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate. Notwithstanding the foregoing, (a) and (y) if at any time there is no Debt Rating, then the Applicable Rate in effect from the Sixth Amendment Effective Date through the first Business Day immediately following the date a shall be determined by reference to the Pricing Level corresponding to the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company for the most recently-ended four quarter period as set forth in the most recent Compliance Certificate is required to be deliveredreceived by the Administrative Agent pursuant to Section 7.02(a) for the fiscal quarter ending September 30, 2020 shall be determined based upon Pricing Level 3 and (b). Notwithstanding the foregoing, (A) at any time the Applicable Rate is determined by reference to the Consolidated Leverage Ratio, the determination of the Applicable Rate for any such period shall be subject to the provisions of Section  2.10(b). and (B) the initial Applicable Rate shall be set at Pricing Level 3 until the earlier of (1) the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a) for the first fiscal quarter to occur following the Ninth Amendment Effective Date to the Administrative Agent and (2) a publicly announced change in the Debt Ratings shall be effective as of the date on which such change is publicly announced.

 

6

“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 reasonably determined by the Administrative Agent or the applicable L/C 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 Bank” has the meaning set forth in the definition of Cash Equivalents.

“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.

“Arrangers” means BofA Securities, Wells Fargo Securities, LLC, PNC Capital Markets LLC, and Truist Securities, Inc. and Wells Fargo Bank, National Association.

“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.

“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 hereunder) substantially in the form of Exhibit E or any other form (including an electronic documentation form generated use of an electronic platform) approved by the Administrative Agent.

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

“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease (provided, however, that calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall be made by the Company in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease) and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.

“Attributed Principal Amount” means, on any day, with respect to any Permitted Receivables Financing entered into by the Company or any other Loan Party, the aggregate amount (with respect to any such transaction, the “Invested Amount”) paid to, or borrowed by, such Person as of such date under such Permitted Receivables Financing, minus the aggregate amount received by the applicable Receivables Financier and applied to the reduction of the Invested Amount under such Permitted Receivables Financing.

“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.

 

7

“Australian Base Rate” means, for all Australian Swing Line Loans, on each day any such Australian Swing Line Loan is outstanding, a fluctuating rate per annum equal to the rate announced from time to time by the Reserve Bank of Australia as the “cash rate” at or about 10:30 a.m. (Sydney, Australia time) on such day. If such rate is not available at such time for any reason, then the “Australian Base Rate” shall be the rate per annum as otherwise agreed to by the applicable Australian Borrower and the Australian Swing Line Lender; provided that if such Australian Borrower and the Australian Swing Line Lender are unable to mutually agree on an acceptable rate, the Australian Swing Line Lender shall be under no obligation to provide Australian Swing Line Loans. Any change in such rate shall take effect at the opening of business on the Business Day of such change. If the Australian Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Australian Borrowers” has the meaning specified in the introductory paragraph hereto.

“Australian dollar” and “A$” mean lawful money of the Commonwealth of Australia.

“Australian FinanceCo Borrower” has the meaning specified in the introductory paragraph hereto.

“Australian Swing Line Lender” means Bank of America, N.A., Australia Branch, in its capacity as provider of Australian Swing Line Loans, or any successor lender providing Australian Swing Line Loans hereunder.

“Australian Swing Line Loan” has the meaning specified in Section 2.04(a)(ii).

“Australian Swing Line Note” has the meaning specified in Section 2.11(a)(iii).

“Australian Swing Line Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) Fifty Million Dollars ($50,000,000) and (b) the Aggregate Revolving Commitments. The Australian Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“Auto-Borrow Agreement” has the meaning specified in Section 2.04(g).

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

“Availability Period” means (a) with respect to the Revolving Loans, the period from and including the Closing Date to the earliest of (ai) the Maturity Date, (bii ) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (ciii ) the date of termination of the commitment of each Lender to make Revolving Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 9.02. and (b) with respect to the Delayed Draw Term Loans, the period beginning on the Ninth Amendment Effective Date and ending on the earliest of (i) five (5) business days after the Termination Date (as defined in the Acquisition Agreement in effect on the Ninth Amendment Effective Date without giving effect to any amendment thereto or consent thereunder (other than any extension thereof as contemplated by Section 10.2(a) of the Acquisition Agreement in effect on the Ninth Amendment Effective Date)), (b) the closing of the Blattner Acquisition without the use of the Delayed Draw Term Loan, (c) the termination or expiration of the Acquisition Agreement in accordance with its terms or (d) receipt by the Administrative Agent of written notice from the Company of its election to terminate all Delayed Draw Term Loan Commitments pursuant to Section 2.06(b).

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

 

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

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bank of America” means Bank of America, N.A. and its successors.

“Base Rate” means for any day a fluctuating rate of interest 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 EurocurrencyLIBOR Rate plus 1.00%, subject to the interest rate floors set forth therein. The “prime rate” 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 the “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. If the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 or 3.07, then the Base Rate shall be the greater of clauses (a) and (b) of this definition and shall be determined without reference to clause (c) of this definition.

“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“Benchmark” means, initially, LIBOR; provided, that, if a replacement of the Benchmark has occurred pursuant to Section 3.03(b) then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” means:

(a) for purposes of Section 3.03(b)(i), the first alternative set forth below that can be determined by the Administrative Agent: (i) the sum of: (A) Term SOFR and (B) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or (ii) the sum of: (A) Daily SOFR and (B) 0.26161% (26.161 basis points); provided, that, if initially LIBOR is replaced with the rate contained in clause (ii) above (Daily SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Company and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (i) above; and

 

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(b) for purposes of Section 3.03(b)(ii), the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Company as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for Dollar-denominated syndicated credit facilities at such time;

provided, that, (x) if the Benchmark Replacement as determined pursuant to clause (a) or (b) of this definition would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents, and (y) any Benchmark Replacement shall be applied in a manner consistent with market practice; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with the Company in connection with any Benchmark Replacement determined pursuant to clause (b) of the definition of “Benchmark Replacement”) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent (in consultation with the Company in connection with any Benchmark Replacement determined pursuant to clause (b) of the definition of “Benchmark Replacement”) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“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 and subject to 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”.

 

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“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Blattner Acquisition” means the merger of the Merger Sub with and into the Acquired Company, whereby the Acquired Company will be the surviving entity as an indirect wholly owned Subsidiary of the Company.

“BofA Securities” means BofA Securities, Inc.

“Borrower” and “Borrowers” has the meaning specified in the introductory paragraph hereto (it being understood that as of the Sixth Amendment Effective Date, QSI Finance V (US), L.P. shall no longer be a Borrower under this Agreement).

“Borrower Materials” has the meaning set forth in Section 11.07.

“Borrowing” means each of the following, as the context may require: (a) a borrowing of Swing Line Loans pursuant to Section 2.04, and (b) a borrowing consisting of simultaneous Loans of the same Type, in the same currency and, in the case of EurocurrencyLIBOR Rate Loans and Alternative Currency Term Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

“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 or other jurisdiction where the Administrative Agent’s Office is located and; provided, that:

(a) when used in connection with a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market;

(b) (a) if such day relates to any interest rate settings as to a Eurocurrency Ratean Alternative Currency Loan denominated in DollarsEuro, any fundings, disbursements, settlements and payments in DollarsEuro in respect of any such Eurocurrency RateAlternative Currency Loan, or any other dealings in DollarsEuro to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateAlternative Currency Loan, means any such daya Business Day that is also a London BankingTARGET Day;

(c) if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in (i) Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom; and (ii) Yen, means a day other than when banks are closed for general business in Japan;

(d) (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in EuroCanadian Dollars in respect of any such Eurocurrency Ratea Loan denominated in Canadian Dollars, or any other dealings in EuroCanadian Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Dayany such day on which banks are open for foreign exchange business in Toronto, Ontario; and

 

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(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

(e) (d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Canadian Dollars, Sterling or Euro in respect of a Eurocurrency Ratean Alternative Currency Loan denominated in a currency other than Canadian Dollars, Sterling or Euro, or any other dealings in any currency other than Canadian Dollars, Sterling or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateAlternative Currency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

“Businesses” means, at any time, a collective reference to the businesses operated by the Company and its Subsidiaries at such time.

“Canadian Borrower” has the meaning specified in the introductory paragraph hereto.

“Canadian dollar” and “C$” mean lawful money of Canada.

“Canadian Prime Rate” means, for any day a fluctuating rate of interest per annum equal to the greater of (a) the per annum rate of interest quoted or established as the “prime rate” of the Canadian Swing Line Lender which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (b) the average CDOR Rate for a 30-day term plus ¹⁄₂ of 1% per annum, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to any Borrower or any other Person. Such prime rate is based on various factors including cost 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 the prime rate shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based on the Canadian Prime Rate hereunder shall be adjusted simultaneously with any change in the Canadian Prime Rate. In the event the Canadian Swing Line Lender (including any successor or assignee) does not at any time announce a “prime rate”, then clause (a) of Canadian Prime Rate shall mean the “prime rate” (being the rate for loans made in Canadian Dollars in Canada) publicly announced by a Canadian chartered bank (listed on Schedule 1 of the Bank Act (Canada)) as selected by the Administrative Agent. If the Canadian Prime Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Canadian Swing Line Lender” means Bank of America, N.A., Canada Branch, in its capacity as provider of Canadian Swing Line Loans, or any successor lender providing Canadian Swing Line Loans hereunder.

“Canadian Swing Line Loan” has the meaning specified in Section 2.04(a)(iii).

“Canadian Swing Line Note” has the meaning specified in Section 2.11(a)(iv).

“Canadian Swing Line Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) Fifty Million Dollars ($50,000,000) and (b) the Aggregate Revolving Commitments. The Canadian Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

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“Capital Lease” means, as applied to any Person, any lease of any Property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.

“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“Captive Insurance Subsidiary” means any Subsidiary of the Company that is subject to regulation as an insurance company (or any Subsidiary thereof).

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers and the Lenders, as collateral for the L/C Obligations or obligations of the Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Administrative Agent and the applicable L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuers (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.

“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States, Australia or Canada, or any agency, instrumentality or government sponsored enterprise thereof, having maturities of not more than twelve (12) months from the date of acquisition, (b) time deposits and certificates of deposit of (i) any Lender, (ii) any domestic or foreign commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof, or from Moody’s is at least P-1 or the equivalent thereof, or from Fitch is at least F1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than one (1) year from the date of acquisition, (c) commercial paper and variable or fixed rate notes rated A-1 (or the equivalent thereof) or better by S&P, P-1 (or the equivalent thereof) or better by Moody’s, or F1 (or the equivalent thereof) or better by Fitch and maturing within twelve (12) months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by financial institutions having capital of at least $500,000,000 and the portfolios of which are limited such that 95% of such Investments are of the character described in the foregoing subdivisions (a) through (d), (f) Investments in money market mutual funds that comply with Rule 2a-7 under the Investment Company Act of 1940, (g) shares of money market, mutual or similar funds having assets in excess of $100,000,000 and the investments of which are classified in accordance with GAAP as current assets and are limited to investment grade securities (i.e., securities rated at least Baa by Moody’s, at least BBB by S&P or at least BBB by Fitch and commercial paper of United States and foreign banks and bank holding companies and their subsidiaries which, at the time of acquisition, are rated A-1 (or better) by S&P, P-1 (or better) by Moody’s or F1 (or better) by Fitch), provided that the maturities of such Cash Equivalents shall not exceed twelve (12) months from the date of acquisition thereof, (h) variable rate demand notes having a letter of credit from an Approved Bank and having a put option no longer than seven days from the date of purchase, irrespective of whether taxable or tax free and (i) securities issued or directly and fully guaranteed or insured by a foreign country or any state, commonwealth or territory of the United States having a rating of “A” or better from either S&P or Moody’s, or any agency, instrumentality or government sponsored enterprise thereof, having maturities of not more than twelve (12) months from the date of acquisition.

 

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“CDOR Rate” has the meaning specified in the definition of “EurocurrencyAlternative Currency Term Rate”.

“Change in Law” means, with respect to any Person, the occurrence, after the date such Person becomes a party to this Agreement, 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, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, however, for purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines and directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar entity) 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 an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that (i) a person or group shall be deemed to have “beneficial ownership” of all Capital Stock that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time and (ii) an entity shall not be deemed to have “beneficial ownership” of any Capital Stock owned by any member of the Company’s board of directors employed by or affiliated with such entity), directly or indirectly, of thirty eight percent (38%) of the Capital Stock of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b) during any period of 24twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company ceases to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

(c) if at any time Permitted Subordinated Indebtedness is outstanding, the occurrence of a “Change in Control” (or any comparable term) under, and as defined in, the documentation governing such Permitted Subordinated Indebtedness; or

 

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(d) there occurs any “Change of Control” or “Fundamental Change” (or other occurrence that is similarly defined or described) under the Senior Note Indenture or any of the documentation entered into in connection therewith, except for so long as the Company is not required to prepay or repurchase or offer to prepay or repurchase the Indebtedness incurred pursuant thereto as a result of such event.

“Closing Date” means the date hereof.

“Commitment” means a Revolving Commitment, a Delayed Draw Term Loan Commitment or an Incremental Term Commitment, as the context may require.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

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

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

“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 EBIT” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to, without duplication, (i) Consolidated Net Income for such period plus (ii) Consolidated Net Income for such period with respect to revenue received by the Company or a Subsidiary from construction projects that is not recognized under GAAP during such period due to the fact that the Company or any Subsidiary has an equity, joint venture or other direct or indirect beneficial interest in the joint venture or other such entity constructing such project; provided that Consolidated Net Income with respect to such revenue shall not be included in Consolidated EBIT in any subsequent period when such revenue is recognized under GAAP to the extent that it was previously included in Consolidated EBIT pursuant to this clause (ii); plus the following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest Expense for such period, (b) the provision for taxes based on income or revenues payable by the Company and its Subsidiaries for such period, and (c) without duplication, Non-Cash Charges for such period.

“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated EBIT for such period plus (b) the amount of depreciation and amortization expense for such period (to the extent deducted in calculating Consolidated Net Income for such period).

“Consolidated Funded Indebtedness” means Funded Indebtedness of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP.

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBIT for the period of the four (4) fiscal quarters most recently ended to (b) the sum of (i) Consolidated Interest Expense for such period minus (ii) to the extent included in calculating Consolidated Interest Expense, all interest expense attributable to capitalized loan costs and the amount of fees paid in connection with the issuance of letters of credit on behalf of the Company or any Subsidiary during such period.

 

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“Consolidated Interest Expense” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to the sum of all interest, premium payments, debt discount, fees, charges and related expenses of the Company and its Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP.

“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date minus the sum of (x) 100% of the amount of unrestricted cash and Cash Equivalents held by the Company and its Domestic Subsidiaries which would appear on a consolidated balance sheet of the Company and its Subsidiaries as of such date plus (y) (i) 100% of the amount of unrestricted cash and Cash Equivalents held by Foreign Subsidiaries which would appear on a consolidated balance sheet of the Company and its Subsidiaries as of such date, but only the portion of such cash and Cash Equivalents to the extent not in excess of the principal amount of intercompany Indebtedness owed by Foreign Subsidiaries to the Company, provided that such intercompany Indebtedness could be repaid on a tax-free basis with such cash and Cash Equivalents (or proceeds thereof), plus (ii) 85% of the amount of any additional unrestricted cash and Cash Equivalents held by Foreign Subsidiaries which would appear on a consolidated balance sheet of the Company and its Subsidiaries as of such date, in an aggregate amount for this clause (y) in excess of $25,000,000 to (b) Consolidated EBITDA for the period of the four (4) fiscal quarters most recently ended.

“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the net income of the Company and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.

“Consolidated Net Worth” means, as of any date of determination, consolidated shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance with GAAP.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

“Control” has the meaning specified in the definition of “Affiliate.”

“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Covered Party” has the meaning specified in Section 11.25.

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“Credit Party” has the meaning specified in Section 10.11.

“Daily SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

“Debt Issuance” means the issuance by any Borrower or any Subsidiary of any Indebtedness.

“Debt Rating” means, as of any date of determination, (a) the Company’s non-credit enhanced, senior unsecured long-term debt rating on such date as determined by S&P or (b) the Company’s non-credit enhanced, senior unsecured long-term debt rating on such date as determined by Moody’s; provided, that,

 

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if as of any such date the Applicable Rate is determined by reference to the Debt Ratings, (i) if the Debt Ratings shall differ by one Pricing Level, then the Pricing Level for the higher (i.e., the Pricing Level that is numerically lower) of such Debt Ratings shall apply, (ii) if the Debt Ratings differ by more than one Pricing Level, then the Pricing Level that is one level lower (i.e., the Pricing Level that is numerically higher) than the Pricing Level of the higher (i.e. the Pricing Level that is numerically lower) Debt Rating shall apply and (iii) if there is only one Debt Rating, then the Pricing Level that is one level lower (i.e., the Pricing Level that is numerically higher) than the Pricing Level of such Debt Rating shall apply. If there is no Debt Rating, the Applicable Rate shall be determined by reference to the Pricing Level corresponding to the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower for the most recently-ended four quarter period as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a).

“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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 condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means an interest rate equal to the sum of (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a EurocurrencyLIBOR Rate Loan or an Alternative Currency Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Defaulting Lender” means, subject to Section 2.15(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination 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) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C 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 or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Company, the Administrative Agent, any L/C Issuer or any Swing Line 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 Lender’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 Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with 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 Administrative 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) 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

 

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in such a capacity, or (iii) 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 Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts 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 Administrative 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 manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(d)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, each L/C Issuer, each Swing Line Lender and each other Lender promptly following such determination.

“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.

“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

“Delayed Draw Term Loan Commitment” means, as to each Lender, such Lender’s obligation to make a Delayed Draw Term Loan to the Company pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Delayed Draw Term Loan Commitment” or opposite such caption in the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Delayed Draw Term Loan Commitments of all of the Lenders on the Ninth Amendment Effective Date is SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000).

“Delayed Draw Term Loan” has the meaning specified in Section 2.01(b).

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

“Designated Lender” has the meaning set forth in Section 3.02.

“Disposition” or “Dispose” means the sale, transfer, license, rental, lease or other disposition (including any Sale and Leaseback Transaction) of any Property by the Company or any Subsidiary (including the Capital Stock of any Subsidiary), including (a) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, and (b) any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division, but excluding (i) the sale, rental, lease, license, transfer or other disposition of inventory in the ordinary course of business of the Company or any Subsidiary, (ii) (a) the sale, rental, lease, license, transfer or other disposition of machinery and equipment (including vehicles) that is obsolete, uneconomical, surplus, worn out or otherwise no longer used or useful in the conduct of business of the Company or any

 

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Subsidiary, or the retirement of any such assets or replacement of any such assets (with assets of equal or greater value) and (b) the rental, lease or sublease of machinery and equipment (including vehicles) to subcontractors, customers (including customers of any Person in which the Company or any Subsidiary has made an Investment) or joint ventures in the ordinary course of business, (iii) any sale, rental, lease, license, transfer or other disposition of Property by the Company or any Subsidiary (directly or indirectly) to the Company or any Subsidiary, (iv) any Involuntary Disposition by the Company or any Subsidiary, (v) any sale the proceeds of which are applied to acquire “replacement property” under the like-kind exchange rules of Section 1031 of the Internal Revenue Code or the involuntary disposition rules of Section 1031 of the Internal Revenue Code, (vi) any sale, transfer or other disposition of any Excluded Property, (vii) any lease by the Company or any Subsidiary of infrastructure and related assets constructed or acquired by the Company or any Subsidiary the title to which will or may be transferred in compliance with Section 8.05 and (viii) any sale, transfer or other disposition of those assets identified on Schedule 1.01(a) attached hereto. The term “Disposition” shall not be deemed to include (w) any issuance by any Borrower or any Subsidiary to any Person of shares of its Capital Stock, (x) for the avoidance of doubt, any disposition of cash in connection with a Permitted Acquisition or other Investment permitted by this Agreement, (y) any assignment, contribution or other disposition directly or indirectly to any Foreign Subsidiary of any intercompany Indebtedness advanced by the Company or any Domestic Subsidiary to a Foreign Subsidiary (or any note or other instrument evidencing such Indebtedness, or the cancellation, forgiveness or repayment of any such Indebtedness) in connection with an Investment permitted by this Agreement or (z) any Restricted Payment permitted under Section 8.06.

“Disqualified Institution” means, on any date, (a) any Person designated by the Company as a “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to the date hereof and (b) any other Person that is a competitor of the Company or any of its Subsidiaries, which Person has been designated by the Company as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) not less than two (2) Business Days prior to such date; provided that (x) the “Disqualified Institutions” shall exclude any Person that the Company has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time and (y) the Company may not designate as a “Disqualified Institution” any Person that is a lender under the Existing Credit Agreement.

“Document” has the meaning specified in Section 11.21.

“Dollar” and “$” mean lawful money of the United States.

“Dollar Equivalent” means, atfor any amount, at the time of determination thereof, (a) with respect to anyif such amount denominatedis expressed in Dollars, such amount, and (b) with respect to any amount denominated in anyif such amount is expressed in an Alternative Currency, the equivalent amount thereof of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative Agent, the applicable Swing Line Lender or the applicable L/C Issuer, as applicable) by the applicable Bloomberg source (or such other publicly available source for displaying exchange rates) on the date that is two (2) Business Days immediately preceding the date of determination (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as reasonably determined by the Administrative Agent, the applicable Swing Line Lender or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.applicable using any method of determination it deems appropriate in its reasonable discretion), and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative Agent, the applicable Swing Line Lender or the applicable L/C Issuer, as applicable, using any method of determination it deems appropriate in its reasonable discretion. Any determination by the Administrative Agent, the Swing Line Lenders or the L/C Issuers pursuant to clauses (b) or (c) pursuant to this definition shall be conclusive absent manifest error.

 

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“Domestic Obligor” means any Loan Party that is organized or existing under the laws of the United States, any state of the United States or the District of Columbia.

“Domestic Subsidiary” means any Subsidiary that is organized or existing under the laws of the United States, any state of the United States or the District of Columbia.

“Domestic Swing Line Lender” means Bank of America in its capacity as provider of Domestic Swing Line Loans, or any successor lender providing Domestic Swing Line Loans hereunder.

“Domestic Swing Line Loan” has the meaning specified in Section 2.04(a)(i).

“Domestic Swing Line Note” has the meaning specified in Section 2.11(a)(ii).

“Domestic Swing Line Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) One Hundred Million Dollars ($100,000,000) and (b) the Aggregate Revolving Commitments. The Domestic Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“DQ List” has the meaning set forth in Section 11.06(g)(iv).

“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6^th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. on the fifth (5^th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

“Early Opt-in Election” means the occurrence of (a) a determination by the Administrative Agent, or a notification by the Company to the Administrative Agent that the Borrowers have made a determination, that Dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section  3.03(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (b) the joint election by the Administrative Agent and the Company to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders.

“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the Company or any Subsidiary to make earn out or other contingency payments pursuant to the documentation relating to such Acquisition. The amount of any Earn Out Obligation shall be deemed to be the aggregate liability in respect thereof as recorded on the balance sheet of the Company and its Subsidiaries in accordance with GAAP; provided that, Earn Out Obligations shall not include any obligations that (i) mature or are payable after the Maturity Date, (ii) are not required to be paid in cash (including such obligations payable in Capital Stock) or (iii) are contingent obligations which are not yet earned and payable pursuant to the documentation relating to such Acquisition.

“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.

 

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“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.

“Electronic Copy” has the meaning specified in Section 11.21.

“Electronic Record” has the meaning assigned to that term in 15 USC §7006.

“Electronic Signature” has the meaning assigned to that term in 15 USC §7006.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

“Eligible Currency” means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international interbank market available to the Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the Lenders of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any change in the national or international financial, political or economic conditions are imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent (in the case of any Revolving Loans to be denominated in an Alternative Currency) or the applicable L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent is no longer readily calculable with respect to such currency or (c) providing such currency is impracticable for the Lenders (each of clauses (a), (b) and (c) a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Lenders and the Company, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist(s). Within five (5) Business Days after receipt of such notice from the Administrative Agent, the Borrowers shall repay all Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.

“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

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“Equity Issuance” means any issuance by the Company or any Subsidiary to any Person of shares of its Capital Stock, other than (a) any issuance of shares of its Capital Stock pursuant to the exercise of options, stock appreciation rights or warrants, (b) any issuance of shares of its Capital Stock pursuant to the conversion of any debt securities to equity or the conversion or exchange of any class of equity securities to or for any other class of equity securities, (c) any issuance of restricted stock, restricted stock units, options, stock appreciation rights or warrants relating to its Capital Stock, and (d) any issuance by the Company of shares of its Capital Stock as consideration for a Permitted Acquisition or other Investment permitted by this Agreement. The term “Equity Issuance” shall not be deemed to include any Disposition.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“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 Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan or Multiemployer 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 that 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; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (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 Internal Revenue Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon 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.

“EURIBOR” has the meaning specified in clause (a) of the definition of “Alternative Currency Term Rate”.

“Euro” and “€” mean the single currency of the Participating Member States.

“Eurocurrency Rate” means:

(a) with respect to any Credit Extension, for any Interest Period,:

(i) denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period) (“LIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00 a.m. (London time) on the Rate Determination Date, for deposits in the relevant currency, with a term equivalent to such Interest Period;

 

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(ii) denominated in Canadian dollars, the rate per annum equal to the Canadian Dollar Offered Rate (the “CDOR Rate”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:00 a.m. (Toronto, Ontario time) on the Rate Determination Date with a term equivalent to such Interest Period;

(iii) denominated in Australian dollars, the rate per annum equal to the Bank Bill Swap Reference Bid Rate, or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:30 a.m. (Sydney, Australia time) on the Rate Determination Date with a term equivalent to such Interest Period;

(iv) with respect to any Credit Extension denominated in any other Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.10; and

(b) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m. (London time) determined two (2) Business Days prior to such date for Dollar deposits being delivered in the London interbank market with a term of one (1) month commencing that day;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; provided, further, that, if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

“European Union” means the economic, scientific and political organization of member states known as the European Union at any particular time during the term of this Agreement.

“Event of Default” has the meaning set forth in Section 9.01.

“Excluded Property” means, with respect to any Loan Party or any Domestic Subsidiary, (a) any owned or leased personal Property which is located outside of the United States, (b) any personal Property (including motor vehicles) in respect of which perfection of a Lien is not either (i) within the scope of Article 8 or Article 9 of the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (c) any Property which, subject to the terms of Section 8.09, is subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Person from granting any other Liens in such Property, (d) any owned or leased real Property, (e) the fractional interests of the Company or any Subsidiary in that certain Raytheon Hawker 900XP aircraft and that certain Textron Cessna 680A Citation Latitude aircraft (or any replacements thereof), (f) the interest of the Company or any Subsidiary in any aircraft or helicopters or replacements thereof, (g) the interest of the Company or any Subsidiary in any vessel or any replacement thereof and (h) the Capital Stock of any Foreign Subsidiary that is an Immaterial Subsidiary.

 

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“Excluded Swap Obligation” means, with respect to the Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of the Guarantor of, or the grant under a Loan Document by the Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes a violation of the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of the Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.07 and any and all Guarantees of the Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of the Guarantor, or grant by the Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or security interest is or becomes a violation of the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).

“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 11.14) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii)(C) 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 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Existing Credit Agreement” has the meaning set forth in the introductory paragraph hereto.

“Existing Letters of Credit” means the letters of credit described by the applicable L/C Issuer, date of issuance, letter of credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 1.01(b)., including those letters of credit issued by an L/C Issuer for the account of the Acquired Company or one of its Subsidiaries, and assumed by the Company pursuant to an agreement in form and substance satisfactory to the Administrative Agent and such L/C Issuer.

“Facilities” means, at any time, a collective reference to the facilities and real properties owned, leased or operated by the Company or any Subsidiary.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing 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 Internal Revenue Code.

 

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“Federal” means Federal Insurance Company, an Indiana corporation.

“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that, if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

“Financial Letter of Credit” means a standby Letter of Credit supporting payment obligations owing to third parties that meets the requirements of a “financial standby letter of credit” under 12 C.F.R. Part 3, Appendix A, Section 4(a)(8)(i) or any successor Comptroller of the Currency regulation.

“Financial Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $900,000,000 and (b) the Aggregate Revolving Commitments. The Financial Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“Fitch” means Fitch Ratings, Inc. and any successor thereto.

“Foreign Borrowers” means the Australian Borrowers and the Canadian Borrower.

“Foreign Borrower Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) Eight Hundred Million Dollars ($800,000,000) and (b) the Aggregate Revolving Commitments. The Foreign Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“Foreign Lender” means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

“Foreign Surety” means any Person (together with its affiliates and subsidiaries and other companies writing bonds for which a Foreign Underwriting Agreement is consideration (and other companies from whom such Person procures bonds for the Principal (as defined in the applicable Foreign Underwriting Agreement))) who acts under the applicable Foreign Surety Credit Documents as executor or procurer of bonds pursuant to such Foreign Surety Credit Documents, and their co-sureties and reinsurers, and their respective successors and permitted assigns.

“Foreign Surety Credit Documents” has the meaning specified in the applicable Foreign Underwriting Agreement (such incorporation to include the defined terms contained in the definition of such Foreign Surety Credit Documents contained in such Foreign Underwriting Agreement).

“Foreign Underwriting Agreement” means any Underwriting, Continuing Indemnity and Security Agreement or other indemnity agreement by and among one or more Foreign Subsidiaries and the applicable Foreign Surety, as amended or modified from time to time in accordance with the terms hereof and thereof.

 

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“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Pro Rata Share 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 and (b) with respect to the Swing Line Lenders, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

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

“Fund Entity” means any Wholly Owned Subsidiary of the Company which does not act other than either (a) solely as the general partner of one or more of the Company’s Investment Funds or (b) solely for the purpose of being a registered investment adviser for any of such Investment Funds, whether directly or indirectly through the general partner of such Investment Fund.

“Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations of such Person evidenced by bonds (other than surety bonds), debentures, notes, loan agreements or other similar instruments;

(b) all purchase money Indebtedness;

(c) all obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments (which, for the avoidance of doubt, excludes surety bonds);

(d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable and accrued expenses in the ordinary course of business), including any Earn Out Obligations;

(e) the Attributable Indebtedness of Capital Leases and Synthetic Leases;

(f) the Attributable Indebtedness of Securitization Transactions;

(g) all preferred stock or other equity interests providing for mandatory redemptions, sinking fund or like payments prior to the Maturity Date;

(h) all Guarantees with respect to Indebtedness of the types specified in clauses (a) through (g) above of another Person; and

(i) all Indebtedness of the types referred to in clauses (a) through (h) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company, or similar type of entity that is formed in a foreign jurisdiction) in which such Person is a general partner or joint venturer, except to the extent that Indebtedness is non-recourse to such Person.

 

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For purposes hereof, (x) the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments shall be the maximum amount available to be drawn thereunder and (y) the amount of any Guarantee shall be the amount of the Indebtedness subject to such Guarantee.

“GAAP” means generally accepted accounting principles in the United States set forth 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 such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, as in effect from time to time, or if the Company adopts the International Financial Reporting Standards (“IFRS”), the IFRS, as in effect from time to time.

“Governmental Authority” means 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, administrative tribunal, 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).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranteed Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.

“Guaranteed Swap Agreement” means any Swap Contract that is entered into by and between any Loan Party or any Domestic Subsidiary (other than any Fund Entity) and any Swap Bank with respect to such Swap Contract. For the avoidance of doubt, a holder of Obligations in respect of Guaranteed Swap Agreements shall be subject to the last paragraph of Section 9.03 and Section 10.10.

“Guaranteed Treasury Management Agreement” means any Treasury Management Agreement that is entered into by and between any Loan Party or any Domestic Subsidiary (other than any Fund Entity) and any Treasury Management Bank with respect to such Treasury Management Agreement. For the avoidance of doubt, a holder of Obligations in respect of Guaranteed Treasury Management Agreements shall be subject to the last paragraph of Section 9.03 and Section 10.10.

 

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“Guarantor” means, with respect to (a) Obligations under any Swap Contract between any Loan Party or any Domestic Subsidiary (other than any Fund Entity) and any Swap Bank, (b) Obligations under any Treasury Management Agreement between any Loan Party or any Domestic Subsidiary (other than any Fund Entity) and any Treasury Management Bank, (c) any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 4.01 and 4.07) under the Guaranty, and (d) Obligations of the Foreign Borrowers, the Company (and the successors and permitted assigns of the Company).

“Guaranty” means the Guaranty made by the Guarantor in favor of the Administrative Agent and the Lenders pursuant to Article IV hereof.

“Hazardous Materials” means any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances, as defined by 42 U.S.C. §9601(14), any pollutant or contaminant, as defined by 42 U.S.C. §9601(33), and any toxic substances, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws.

“Honor Date” has the meaning set forth in Section 2.03(c).

“IFRS” has the meaning set forth in the definition of GAAP.

“Immaterial Subsidiary” means, at any time, any Subsidiary of the Company then having assets with a book value of less than $10,000,000; provided, that if the aggregate book value of the assets of all Subsidiaries of the Company that would otherwise constitute Immaterial Subsidiaries shall exceed $50,000,000, only those such Subsidiaries having assets with a book value of less than $5,000,000 shall be deemed to constitute Immaterial Subsidiaries.

“Impacted Loans” has the meaning specified in Section 3.03(a).

“Incremental Cap” means, as of any date of determination, the sum of (a) the total of (i) $400,000,000, minus (ii) the aggregate amount of all Incremental Revolving Credit Increases instituted after the SixthNinth Amendment Effective Date and prior to such date of determination in reliance on clause (a)(i) above, minus (iii) the aggregate principal amount of all Incremental Term Loans instituted after the SixthNinth Amendment Effective Date and prior to such date of determination in reliance on clause (a)(i) above, plus (b) an unlimited amount so long as the Incremental Leverage Ratio Requirement is satisfied at the time of the applicable institution of Incremental Revolving Credit Increases and/or Incremental Term Loans.

“Incremental Leverage Ratio Requirement” means, for purposes of the Incremental Cap, the requirement that the Company shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that immediately after giving pro forma effect to the applicable institution of Incremental Revolving Credit Increases and/or Incremental Term Loans and the use of proceeds therefrom (and any related Acquisitions, other Investments or other transactions in connection therewith), the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 7.01(a) or 7.01(b) (it being understood that any institution of Incremental Revolving Credit Increases and/or Incremental Term Loans in reliance on clause (b) of the definition of “Incremental Cap” may be incurred prior to any institution of Incremental Revolving Credit Increases and/or Incremental Term Loans in reliance on clause (a) of the definition of “Incremental Cap”, and, in the case of a simultaneous institution of Incremental Revolving Credit Increases and/or Incremental Term Loans of the maximum amount permitted to be incurred under clause (a) of the definition of “Incremental Cap”, the Company shall not be required to give pro forma effect to any such institution of Incremental Revolving Credit Increases and/or Incremental Term Loans in reliance on clause (a) of the definition of “Incremental Cap”); provided, that, for the purpose of calculating the Consolidated Leverage Ratio pursuant to this definition, any Incremental Revolving Credit Increase shall be deemed to be fully drawn.

 

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“Incremental Revolving Credit Increase” has the meaning specified in Section 2.02(f).

“Incremental Term Commitment” means, as to each Lender, with respect to any Incremental Term Facility, its obligation to make an Incremental Term Loan under such Incremental Term Facility.

“Incremental Term Facility” has the meaning specified in Section 2.02(f).

“Incremental Term Facility Amendment” has the meaning specified in Section 2.02(f)(ii).

“Incremental Term Loan” has the meaning specified in Section 2.02(f).

“Incremental Term Note” has the meaning specified in Section 2.11(a).

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all Funded Indebtedness;

(b) net obligations under any Swap Contract;

(c) all obligations arising under surety bonds;

(d) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a), (b) and (c) above of any other Person; and

(e) all Indebtedness of the types referred to in clauses (a) through (d) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company, or similar type of entity that is formed in a foreign jurisdiction) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is non-recourse to the Company or such Subsidiary.

For purposes hereof (y) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date and (z) the amount of any Guarantee shall be the amount of the Indebtedness subject to such Guarantee.

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

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

“Information” has the meaning specified in Section 11.07.

“Interest Payment Date” means, (a) as to any LIBOR Rate Loan other than a Baseor any Alternative Currency Term Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date; provided, however, that if any Interest Period for a EurocurrencyLIBOR Rate Loan or an Alternative Currency Term Rate Loan, as applicable, exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Alternative Currency Daily Rate Loan, the last Business Day of each calendar month and the Maturity Date; and (c) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December, and the applicable Maturity Date.

 

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“Interest Period” means, as to each EurocurrencyLIBOR Rate Loan and each Alternative Currency Term Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a EurocurrencyLIBOR Rate Loan or an Alternative Currency Term Rate Loan, as applicable, and ending on (x) the date one, two (1), three (3) or six (6) months (or, solely with respect to Alternative Currency Term Rate Loans denominated in Canadian Dollars, one (1), two (2) or three (3) months) thereafter (in each case, subject to availability by eachfor the interest rate applicable Lenderto the relevant currency), as selected by the applicable Borrower in its Loan Notice or (y) such other period that is twelve (12) months or less requested by the applicable Borrower and consented to by all the Lenders required to fund or maintain a portion of such Loan; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the applicable Maturity Date.

“Interim Financial Statements” has the meaning set forth in Section 5.01(c).

“Internal Revenue Code” means the Internal Revenue Code of 1986.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, in a single transaction or in a series of related transactions, whether by means of (a) the acquisition of Capital Stock of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment; provided however, there shall be deducted in respect of each such Investment any amount received as a return of capital.

“Investment Fund” means any foreign or domestic limited partnership, limited liability company or other investment vehicle with respect to which a Fund Entity acts as a general partner and/or its registered investment adviser, whether directly or indirectly through the general partner of such Investment Fund, and in which the Company and/or one or more of its Subsidiaries holds no more than a minority equity interest.

“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 Subsidiaries.

“IP Rights” has the meaning set forth in Section 6.17.

“IRS” means the United States Internal Revenue Service.

 

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“ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).

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

“Judgment Currency” has the meaning specified in Section 11.19.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. All L/C Advances shall be denominated in Dollars.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans. All L/C Borrowings shall be denominated in Dollars.

“L/C Commitment” means, with respect to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit hereunder. The initial amount of each L/C Issuer’s L/C Commitment is set forth on Schedule 2.03, or if a L/C Issuer has entered into an Assignment and Assumption or has otherwise assumed a L/C Commitment after the Closing Date, the amount set forth for such L/C Issuer as its L/C Commitment in the Register maintained by the Administrative Agent. The L/C Commitment of a L/C Issuer may be modified from time to time by agreement between such L/C Issuer and the Company, and notified to the Administrative Agent.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

“L/C Issuers” means (a) Bank of America, (b) Bank of Montreal, (c) PNC Bank, National Association, (d) Truist Bank, (e) Wells Fargo Bank, National Association, and (f) BNP Paribas, and (g) any other Lender selected by the Company pursuant to Section 2.03(m) (provided, that, no Lender shall be required to become a L/C Issuer pursuant to this clause (fg) without such Lender’s consent), in each case, (i) including acting through any of its branches or affiliates and (ii) in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder, and “L/C Issuer” means any one of them.

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all outstanding Unreimbursed Amounts, including, without duplication, all 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 1.07. 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 the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or otherwise pursuant to the terms hereof, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context requires otherwise, the term “Lenders” includes any L/C Issuers and the Swing Line Lenders.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate.

“Letter of Credit” means any letter of credit issued pursuant to Section 2.03 and any Existing Letter of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit (including any Performance Letter of Credit and any Financial Letter of Credit). Letters of Credit may be issued in Dollars or in an Alternative Currency.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a letter of credit in the form from time to time in use by the applicable L/C Issuer.

“Letter of Credit Expiration Date” means the day that is thirty (30) days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).

“Letter of Credit Report” means a certificate delivered by an L/C Issuer in a form approved by the Administrative Agent.

“Liberty Mutual” means, collectively, Liberty Mutual Insurance Company, a Massachusetts company, Liberty Mutual Fire Insurance Company and Safeco Insurance Company of America.

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

“LIBOR Quoted Currency” means Dollars, Euro, Sterling and each Alternative Currency for which there is a published LIBOR rate.

“LIBOR Rate” means:

(a) for any Interest Period with respect to any Credit Extension denominated in Dollars, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for such currency for a period equal in length to such Interest Period) (“LIBOR”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m. (London time) on the Rate Determination Date, for deposits in the Dollars, with a term equivalent to such Interest Period; and

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day;

 

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