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Title: |
Credit Agreement |
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Entities: |
Computer Learning Centers Inc.; New Horizons Worldwide Inc.; Bank of America, NA; Bank of New York; Calfee, Halter & Griswold; Sheppard, Mullin, Richter & Hampton |
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Date: |
2003 |
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Preview shows 68KB of 298KB total |
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$66 |
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ID: |
#860383 |
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CREDIT AGREEMENT
Dated as of February _____, 2003
among
NEW HORIZONS WORLDWIDE, INC.,
as Borrower
THE LENDERS NAMED HEREIN
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
CREDIT AGREEMENT
Dated as of February ___, 2003
This CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this "Agreement") is entered into by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation ("Borrower"), each lender whose name is set forth on the signature pages of this Agreement and each lender that may hereafter become a party to this Agreement pursuant to Section 11.8 (each a "Lender" and collectively, "Lenders"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
| Accounts means all accounts, as such term is defined in the UCC, now owned or hereafter acquired by any Person, including (a) all accounts receivable, other receivables, book debts and other forms of obligations (other than forms of obligations evidenced by chattel paper, documents or instruments (as such terms are defined in the UCC)), whether arising out of goods sold or services rendered by it or from any other transaction (including any such obligations that may be characterized as an account or contract right under the UCC), (b) all purchase orders or receipts for goods or services, (c) all rights to any goods represented by any of the foregoing (including unpaid sellers rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), (d) all monies due or to become due to such Person under all purchase orders and contracts for the sale of goods or the performance of services or both by such Person or in connection with any other transaction (whether or not yet earned by performance on the part of such Person) now or hereafter in existence, including the right to receive the proceeds of said purchase orders and contracts, and (e) all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing. |
| Acquired Person means (a) any Person that is the subject of an Acquisition after the Closing Date and (b) any assets constituting a discrete business or operation unit that is the subject of an Acquisition after the Closing Date. |
| Acquisition means any transaction, or any series of related transactions, consummated after the Closing Date, by which Borrower or any of its Subsidiaries directly or indirectly (a) acquires any ongoing business or all or substantially all of the assets of any firm, partnership, joint venture, limited liability company, corporation or division thereof, whether through purchase of assets, merger or otherwise, (b) acquires in one transaction or as the most recent transaction in a series of transactions control of securities of a Person engaged in an ongoing business representing more than 50% of the ordinary voting power for the election of directors or other governing position if the business affairs of such Person are managed by a board of directors or other governing body or (c) acquires control of more than 50% of the ownership interest in any partnership, joint venture, limited liability company, business trust or other Person that is not managed by a board of directors or other governing body. |
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| Adjusted EBITDA means, with respect to any fiscal period, the sum of, without duplication, (a) EBITDA for such fiscal period, plus (b) to the extent deducted in determining Net Income for such fiscal period, non-cash charges of Borrower and its Subsidiaries during such fiscal period relating to Borrowers and its Subsidiaries compliance with Financial Accounting Standards Board Statement No. 142, plus (c) to the extent deducted in determining Net Income for such fiscal period, non-cash charges recorded against earnings in Borrowers and its Subsidiaries financial statements for such fiscal period with respect to the write-down of leasehold estates as a result of the sublease of such leasehold estates, plus (d) to the extent deducted in determining Net Income for such fiscal period, the aggregate amortization of loan fees and prepaid expenses of Borrower and its Subsidiaries with respect to the BofA Credit Facilities for that portion of such fiscal period occurring before January 1, 2003, plus (e) to the extent deducted in determining Net Income for such fiscal period, the non-cash audit adjustment with respect to Borrowers 2002 Fiscal Year with regard to accounting for deferred rent; provided that for purposes of calculating Adjusted EBITDA for the Rolling Period ended December 31, 2002 or for any Fiscal Quarter ended during such Rolling Period, in the event that Borrower and its Subsidiaries record a charge against earnings with respect to a change in accounting estimate for revenue recognition of Borrower and its Subsidiaries in Borrowers and its Subsidiaries financial statements for the Fiscal Quarter ended December 31, 2002, one-fourth of such charge (determined on a pre-tax basis)(the Quarterly Revenue Recognition Adjustment) shall be allocated to each Fiscal Quarter of 2002. |
| Administrative Agent means Wells Fargo when acting in its capacity as the Administrative Agent under any of the Loan Documents, or any successor Administrative Agent. |
| Administrative Agents Office means the Administrative Agents address as set forth on the signature pages of this Agreement, or such other address as the Administrative Agent hereafter may designate by written notice to Borrower and the Lenders. |
| Advance means any advance made or to be made by any Lender to Borrower as provided in Article 2, and includes each Revolving Advance and Term Advance. |
| Affiliate means, as to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, control (and the correlative terms, controlled by and under common control with) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise); provided that, in any event, any Person that owns, directly or indirectly, 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation that has more than 100 record holders of such securities, or 10% or more of the partnership or other ownership interests of any other Person that has more than 100 record holders of such interests, will be deemed to be an Affiliate of such corporation, partnership or other Person. |
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| Aggregate Effective Amount means, as of any date of determination and with respect to all Letters of Credit then outstanding, the sum of (a) the aggregate effective face amounts of all such Letters of Credit not then paid by Issuing Lender plus (b) the aggregate amounts paid by Issuing Lender under such Letters of Credit not then reimbursed to Issuing Lender by Borrower pursuant to Section 2.5(d) and not the subject of one or more Advances made pursuant to Section 2.5(e) or (f). |
| Amortization Date means, with respect to Term Borrowings, March 31, 2003, each Quarterly Payment Date thereafter through the Term Maturity Date, and the Term Maturity Date. |
| Applicable Base Rate Margin means, with respect to any Base Rate Advance, (a) for the Initial Pricing Period, 1.50% (150 basis points) per annum, and (b) for each other Pricing Period, the interest rate margin set forth below (expressed in basis points per annum) opposite the Applicable Pricing Level for that Pricing Period: |
Applicable Margin
Pricing
Level
I 150
II 50
III 0
| Applicable Benchmark Amount means, (a) with respect to each Fiscal Quarter ending during the period from March 31, 2003 through and including December 31, 2003, $8,900,000, and (b) with respect to each Fiscal Quarter ending during the period from March 31, 2004 through and including December 31, 2004, $8,800,000. |
| Applicable Commitment Fee Margin means, (a) for the Initial Pricing Period, 0.50% (50 basis points) per annum, and (b) for each other Pricing Period, the margin set forth below (expressed in basis points per annum) opposite the Applicable Pricing Level for that Pricing Period: |
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Applicable Margin
Pricing
Level
I 50
II 37.5
III 25
| Applicable Eurodollar Rate Margin means, with respect to any Eurodollar Rate Advance, (a) for the Initial Pricing Period, 3.75% (375 basis points) per annum, and (b) for each other Pricing Period, the interest rate margin set forth below (expressed in basis points per annum) opposite the Applicable Pricing Level for that Pricing Period: |
Applicable Margin
Pricing
Level
I 375
II 275
III 225
| Applicable Pricing Level means, for each Pricing Period subsequent to the Initial Pricing Period, the pricing level set forth below opposite Adjusted EBITDA as of the last day of the Fiscal Quarter most recently ended prior to the commencement of that Pricing Period, for the Rolling Period then ended: |
Pricing Level Adjusted EBITDA
I Less than $8,900,000
II Greater than or equal to $8,900,000, but less
than $11,200,000
III Greater than or equal to $11,200,000
| provided that (i) in the event that Borrower does not deliver a Pricing Certificate with respect to any Pricing Period prior to the commencement of such Pricing Period, then until (but only until) such Pricing Certificate is delivered the Applicable Pricing Level for that Pricing Period shall be Pricing Level I, and, subject to clause (ii) of this proviso, if upon delivery of such Pricing Certificate a change is warranted in the Applicable Pricing Level for such Pricing Period, such change shall be effective on the date of delivery of such Pricing Certificate, and (ii) if any Pricing Certificate is subsequently determined to be in error, then any resulting change in the Applicable Pricing Level shall be made retroactively to the beginning of the relevant Pricing Period. Changes in the Applicable Pricing Level shall occur irrespective of the presence or absence of an Event of Default, and the changes resulting from time to time in the Applicable Eurodollar Rate Margin or the Applicable Base Rate Margin shall apply and be payable cumulatively with, not in lieu of, any Default Rate then applicable. |
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| Assignment and Acceptancemeans an assignment and acceptance agreement substantially in the form of Exhibit A. |
| Banking Day means any Monday, Tuesday, Wednesday, Thursday or Friday, other than a day on which banks are authorized or required to be closed in California, or New York. |
| Base Rate means, as of any date of determination, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the higher of (a) the Prime Rate in effect on such date and (b) the Federal Funds Rate in effect on such date plus of 1% (50 basis points). |
| Base Rate Advancemeans an Advance that bears interest in relation to the Base Rate as provided in Section 3.1(b). |
| BofA Credit Facilities means the credit facilities provided to Borrower pursuant to that certain Credit Agreement dated as of April 25, 2001 among Borrower, the Lenders party thereto, and Bank of America, N.A., as agent, as such Credit Agreement may have been amended, supplemented or otherwise modified prior to the Closing Date. |
| Borrowing means a Revolving Borrowing or a Term Borrowing. |
| Capital Lease means, as to any Person, a lease of any Property by that Person as lessee that is, or should be in accordance with GAAP (including Financial Accounting Standards Board Statement No. 13, as amended or superseded from time to time), recorded as a capital lease on the balance sheet of that Person prepared in accordance with GAAP. |
| Capital Lease Obligations means all monetary obligations of a Person under any Capital Lease. |
| Cash means, when used in connection with any Person, all monetary and non-monetary items owned by that Person that are treated as cash in accordance with GAAP, consistently applied. |
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| Cash Equivalents means, when used in connection with any Person, that Person's Investments in: |
(a) Government Securities due within one year after the date of the making of the Investment;
(b) readily marketable direct obligations of any State of the United States of America or any political subdivision of any such State or any public agency or instrumentality thereof given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. or AA by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in each case due within one year from the making of the Investment;
(c) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers' acceptances of, and repurchase agreements covering Government Securities executed by any Lender or any bank incorporated under the Laws of the United States of America, any State thereof or the District of Columbia and having on the date of such Investment combined capital, surplus and undivided profits of at least $250,000,000, or total assets of at least $5,000,000,000, in each case due within one year after the date of the making of the Investment
(d) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers' acceptances of, and repurchase agreements covering Government Securities executed by any Lender or any branch or office located in the United States of America of a bank incorporated under the Laws of any jurisdiction outside the United States of America having on the date of such Investment combined capital, surplus and undivided profits of at least $500,000,000, or total assets of at least $15,000,000,000, in each case due within one year after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities executed by a broker or dealer registered under Section 15(b) of the Securities Exchange Act of 1934, as amended, having on the date of the Investment capital of at least $50,000,000, due within 90 days after the date of the making of the Investment; provided that the maker of the Investment receives written confirmation of the transfer to it of record ownership of the Government Securities on the books of a "primary dealer" in such Government Securities or on the books of such registered broker or dealer, as soon as practicable after the making of the Investment;
(f) readily marketable commercial paper or other debt securities issued by corporations doing business in and incorporated under the Laws of the United States of America or any State thereof or of any corporation that is the holding company for a bank described in clause (c) or (d) above given on the date of such Investment a credit rating of at least P1 by Moodys Investors Service, Inc. or A-1 by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in each case due within one year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation incorporated under the Laws of the United States of America or any State thereof (i) given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. and AA by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in each case having an investment period not exceeding 50 days or (ii) to the extent that investors therein have the benefit of a standby letter of credit issued by Lender or a bank described in clauses (c) or (d) above; provided that (y) the amount of all such Investments issued by the same issuer does not exceed $5,000,000 and (z) the aggregate amount of all such Investments does not exceed $15,000,000;
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(h) a readily redeemable "money market mutual fund" sponsored by a bank described in clause (c) or (d) hereof, or a registered broker or dealer described in clause (e) hereof, that has and maintains an investment policy limiting its investments primarily to instruments of the types described in clauses (a) through (g) hereof and given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. and AA by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original term to maturity of not more than one year issued by a corporation incorporated under the Laws of the United States of America, or a participation interest therein; provided that (i) commercial paper issued by such corporation is given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. and AA by Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), (ii) the amount of all such Investments issued by the same issuer does not exceed $5,000,000 and (iii) the aggregate amount of all such Investments does not exceed $15,000,000.
| category, when used with respect to any Advance, means the designation of whether such Advance is a Revolving Advance or a Term Advance. |
| Certificate means a certificate signed by a Senior Officer or Responsible Official (as applicable) of the Person providing the certificate. |
| Change in Control means any of the following events: (a) the sale, lease, transfer or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of Borrower and its Subsidiaries taken as a whole to any person or group (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act), (b) Borrower shall fail to own, directly or indirectly, 100% of the outstanding capital stock or other equity interests of any Subsidiary of Borrower, (c) any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of, control over, 20% or more of the capital stock or other equity interests of Borrower, (d) during any period of up to 24 consecutive months, commencing after the Closing Date, individuals who at the beginning of such 24-month period were directors of Borrower (together with any new director whose election by Borrowers Board of Directors or whose nomination for election by Borrowers shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors of Borrower then in office or (e) any transaction or series of related transactions constituting a change in control or similar occurrence under documentation evidencing or governing Indebtedness of Borrower and/or any of its Subsidiaries of $250,000 or more, which gives the holder(s) of such Indebtedness the right to accelerate or otherwise require payment of such Indebtedness prior to the maturity date thereof. As used herein, beneficial ownership shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act. |
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| Closing Date means the time and Banking Day on which the conditions set forth in Section 8.1 are satisfied or waived. The Administrative Agent shall notify Borrower and the Lenders of the date that is the Closing Date. |
| Closing Date Lenders means Wells Fargo and any other lender party to this Agreement as of the Closing Date. |
| Code means the Internal Revenue Code of 1986, as amended or replaced and as in effect from time to time. |
| Collateral means all of the collateral covered by the Collateral Documents. |
| Collateral Documents means, collectively, the Security Agreement, the Pledge Agreement, and any other security agreement, pledge agreement, deed of trust, mortgage, notice to or acknowledgment of a registrar or depositary institution, control agreement or other collateral security agreement executed and delivered by Borrower, any of its Subsidiaries or any other Person (and executed by any third party whose signature is necessary) to secure the Obligations. |
| Commercial Letter of Credit means each Letter of Credit issued to support the purchase of goods by Borrower or any of its Subsidiaries which is determined to be a commercial letter of credit by Issuing Lender. |
| Commercial Letter of Credit Agreement means the commercial letter of credit agreement to be executed by Borrower, in form and substance satisfactory to Issuing Lender, either as originally executed or as it may from time to time be supplemented, modified, amended, extended, restated or supplanted. |
| Commitment means a Revolving Commitment or a Term Commitment. |
| Compliance Certificate means a certificate in the form of Exhibit B, properly completed and signed by the chief financial officer of Borrower. |
| Continuation, Continue and Continued each refers to a continuation of Eurodollar Rate Advances from one Eurodollar Period to the next Eurodollar Period pursuant to Section 2.4(c). |
| Contractual Obligation means, as to any Person, any provision of any outstanding security issued by that Person or of any material agreement, instrument or undertaking to which that Person is a party or by which it or any of its Property is bound. |
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| Control Account Agreement has the meaning set forth in the Security Agreement. |
| Conversion, Convert and Converted each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.4(a) or 2.4(b). |
| Debtor Relief Laws means the Bankruptcy Code of the United States of America, as amended from time to time, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws from time to time in effect affecting the rights of creditors generally. |
| Debt Service Coverage Ratio means, as of the last day of any Fiscal Quarter, the ratio of (a) Adjusted EBITDA for the Rolling Period ending on that date to (b) the sum of (i) Interest Expense for such Rolling Period, plus (ii) Scheduled Funded Debt Payments for such Rolling Period, plus (iii) the aggregate of all taxes, as determined in accordance with GAAP, of Borrower and its Subsidiaries, to the extent the same are indicated on the income statement of Borrower and its Subsidiaries for such Rolling Period (including any tax benefit, if reported, but excluding the tax effect of an extraordinary or non-operating gain or loss), plus (iv) the aggregate Earnout Payments required to be paid in cash by Borrower and its Subsidiaries during such Rolling Period, minus (v) to the extent any of the first three Fiscal Quarters of Borrowers 2002 Fiscal Year is included in such calculation, an amount equal to, for each such Fiscal Quarter, forty percent (40%) of the Quarterly Revenue Recognition Adjustment, plus (vi) to the extent that the fourth Fiscal Quarter of Borrowers 2002 Fiscal Year is included in such calculation, an amount equal to the product of (A) forty percent (40%) times (B) the product of (I) the Quarterly Revenue Recognition Adjustment times (II) 3. |
| Default means any event that, with the giving of any applicable notice or passage of time specified in Section 9.1, or both, would be an Event of Default. |
| Default Rate means the interest rate prescribed in Section 3.7. |
| Designated Deposit Account means a deposit account to be maintained by Borrower with Wells Fargo or one of its Affiliates, as from time to time designated by Borrower by written notification to the Administrative Agent. As of the Closing Date, the Designated Deposit Account is account number 4945-095149 maintained with Wells Fargo. |
| Designated Eurodollar Market means, with respect to any Eurodollar Rate Advance, the London Eurodollar Market. |
| Disposition means the sale, transfer or other disposition in any single transaction or series of related transactions of any asset, or group of related assets, of Borrower or any Subsidiary other than (a) Cash, Cash Equivalents, Investments (other than Investments in a Subsidiary), Inventory or other assets sold or otherwise disposed of in the ordinary course of business of Borrower or any Subsidiary, (b) equipment sold or otherwise disposed of where substantially similar equipment in replacement thereof has theretofore been acquired, or thereafter within 90 days is acquired, by Borrower or any Subsidiary, and (c) obsolete assets no longer useful in the business of Borrower or any Subsidiary whose carrying value on the books of Borrower or such Subsidiary is less than $250,000. |
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| Distribution means, with respect to any equity interest or Security issued by a Person, or any warrant or right to acquire any equity interest or Security of a Person, (a) the retirement, redemption, purchase, or other acquisition for value by such Person of any such equity interest or Security, (b) the declaration or (without duplication) payment by such person of any dividend in Cash or in Property (other than in common stock or common member interest, as the case may be, of such Person) on or with respect to any such equity interest or Security, (c) any Investment by such Person in the holder of any such equity interest or Security, and (d) any other payment by such Person constituting a distribution under applicable Laws with respect to such equity interest or Security. |
| Dollars or $ means United States of America dollars. |
| Earnout Payment means any payment which is (a) required to be made by Borrower or any of its Subsidiaries in respect of any Acquisition and (b) based on the earnings or revenues of the related Acquired Person. |
| EBITDA means, with respect to any fiscal period, the sum of (a) Net Income for that fiscal period, plus (b) any extraordinary or non-operating loss reflected in such Net Income, minus (c) any extraordinary or non-operating gain reflected in such Net Income, plus (d) Interest Expense of Borrower and its Subsidiaries for that fiscal period, plus (e) the aggregate amount of federal and state taxes on or measured by income of Borrower and its Subsidiaries for that fiscal period (whether or not payable during that fiscal period), plus (f) depreciation and amortization expense of Borrower and its Subsidiaries for that fiscal period, plus (g) all other non-cash, extraordinary expenses of Borrower and its Subsidiaries for that fiscal period, in each case as determined in accordance with GAAP, consistently applied and, in the case of items (d), (e), (f), and (g) only to the extent reflected in the determination of Net Income for that fiscal period. |
| Eligible Assignee means (a) another Lender, (b) with respect to any Lender, any Affiliate of that Lender, (c) any commercial bank having total assets of $250,000,000 or more, (d) any (i) savings bank, savings and loan association or similar financial institution or (ii) insurance company engaged in the business of writing insurance which, in either case (A) has total assets of $250,000,000 or more, (B) is engaged in the business of lending money and extending credit under credit facilities similar to those extended under this Agreement and (C) is operationally and procedurally able to meet the obligations of a Lender hereunder to the same degree as a commercial bank and (e) any other financial institution (including a mutual fund or other fund) having total assets of $250,000,000 or more which meets the requirements set forth in subclauses (B) and (C) of clause (d) above; provided that each Eligible Assignee must be organized under the Laws of the United States of America, any State thereof or the District of Columbia. |
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| ERISA means the Employee Retirement Income Security Act of 1974, and any regulations issued pursuant thereto, as amended or replaced and as in effect from time to time. |
| ERISA Affiliate means, with respect to any Person, any Person (or any trade or business, whether or not incorporated) that is under common control with that Person within the meaning of Section 414 of the Code. |
| Eurodollar Banking Day means any Banking Day on which dealings in Dollar deposits are conducted by and among banks in the Designated Eurodollar Market. |
| Eurodollar Base Rate means, with respect to any Eurodollar Rate Advance comprising part of the same Borrowing, the rate per annum for United States dollar deposits quoted by Administrative Agent as the Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by Administrative Agent for the purpose of calculating effective rates of interest for loans making reference thereto, on the first day of a Eurodollar Period for delivery of funds on said date for a period of time approximately equal to the number of days in such Eurodollar Period and in an amount approximately equal to the principal amount to which such Eurodollar Period applies. Borrower understands and agrees that Administrative Agent may base its quotation of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Administrative Agent in its discretion deems appropriate including, but not limited to, the rate offered for U.S. dollar deposits on the London Inter-Bank Market. |
| Eurodollar Lending Office means, as to each Lender, its office or branch so designated by written notice to Borrower and the Administrative Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is designated by a Lender, its Eurodollar Lending Office shall be its office at its address for purposes of notices hereunder. |
| Eurodollar Market means a regular established market located outside the United States of America by and among banks for the solicitation, offer and acceptance of Dollar deposits in such banks. |
| Eurodollar Obligations means eurocurrency liabilities, as defined in Regulation D or any comparable regulation of any Governmental Agency having jurisdiction over any Lender. |
| Eurodollar Period means, as to each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date specified by Borrower pursuant to Section 2.1(c) and ending 1, 2, 3 or 6 months (or, with the written consent of all of the Lenders, any other period) thereafter, as specified by Borrower in the applicable Request for Borrowing or Request for Continuation/Conversion provided that: |
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(a) The first day of any Eurodollar Period shall be a Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day that is not a Eurodollar Banking Day shall be extended to the immediately succeeding Eurodollar Banking Day unless such Eurodollar Banking Day falls in another calendar month, in which case such Eurodollar Period shall end on the immediately preceding Eurodollar Banking Day;
(c) With respect to Term Advances, Borrower shall not specify a Eurodollar Period that extends beyond any Amortization Date applicable thereto unless, after giving effect thereto, the aggregate principal amount of the Term Advances having Eurodollar Periods ending after such Amortization Date shall be equal to or less than the aggregate principal amount of Term Advances scheduled to be outstanding after giving effect to the Term Amortization Amount required to be paid on such Amortization Date; and
(d) No Eurodollar Period for any Eurodollar Rate Advance shall extend beyond the Maturity Date applicable to such Eurodollar Rate Advance.
| Eurodollar Rate means, with respect to any Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum (rounded upward, if necessary, to the nearest 1/8 of one percent) determined pursuant to the following formula: |
Eurodollar Eurodollar Base Rate
Rate = 1.00-Eurodollar Reserve
Percentage
| Eurodollar Rate Advance means an Advance that bears interest in relation to the Eurodollar Rate as provided in Section 3.1(c). |
| Eurodollar Reserve Percentage means, with respect to any Eurodollar Rate Advance comprising part of the same Borrowing, the reserve percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor) for Eurocurrency Liabilities (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Administrative Agent for expected changes in such reserve percentage during the applicable Eurodollar Period. |
| Event of Default shall have the meaning provided in Section 9.1. |
| Excess Cash Flow means, with respect to any Fiscal Quarter, the difference between (a) Adjusted EBITDA for the Rolling Period ending on the last day of such Fiscal Quarter, minus (b) the Applicable Benchmark Amount for such Fiscal Quarter. If such amount is less than zero, Excess Cash Flow for such Fiscal Quarter shall be $0. |
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| Facility means the Revolving Facility or the Term Facility, as the context may require. |
| Federal Funds Rate means, as of any date of determination, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, H.15(519)) for such date opposite the caption Federal Funds (Effective)". If for any relevant date such rate is not yet published in H.15(519), the rate for such date will be the rate set forth in the daily statistical release designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Bank of New York (including any such successor, the Composite 3:30 p.m. Quotation) for such date under the caption Federal Funds Effective Rate. If on any relevant date the appropriate rate for such date is not yet published in either H.15(519) or the Composite 3:30 p.m. Quotation, the rate for such date will be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by each of three leading brokers of Federal funds transactions in New York City selected by the Administrative Agent. For purposes of this Agreement, any change in the Base Rate due to a change in the Federal Funds Rate shall be effective as of the opening of business on the effective date of such change. |
| Fiscal Quarter means the fiscal quarter of Borrower and its Subsidiaries ending on each March 31, June 30, September 30 and December 31. |
| Fiscal Year means the fiscal year of Borrower and its Subsidiaries ending on each December 31. |
| Funded Debt means, as of any date of determination, without duplication, the sum of (a) all principal Indebtedness of Borrower and its Subsidiaries for borrowed money (including Subordinated Obligations and any other subordinated indebtedness, debt Securities issued by Borrower or any of its Subsidiaries, the aggregate principal Indebtedness outstanding under the Notes and the Aggregate Effective Amount of all outstanding Letters of Credit) on that date plus (b) the aggregate amount of the principal portion of all Capital Lease Obligations of Borrower and its Subsidiaries on that date plus (c) any Guaranty Obligations of Borrower and its Subsidiaries with respect to the Indebtedness of others of the types referred to in clauses (a) and (b) above on that date. |
| Funded Debt Ratio means, as of the last day of any Fiscal Quarter, the ratio of (a) Funded Debt as of such date to (b) Adjusted EBITDA for the Rolling Period ending on that date. |
| GAAP means, as of any date of determination, accounting principles (a) set forth as generally accepted in then currently effective Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants, (b) set forth as generally accepted in then currently effective Statements of the Financial Accounting Standards Board or (c) that are then approved by such other entity as may be approved by a significant segment of the accounting profession in the United States of America. The term consistently applied, as used in connection therewith, means that the accounting principles applied are consistent in all material respects with those applied at prior dates or for prior periods. |
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| Government Securities means readily marketable (a) direct full faith and credit obligations of the United States of America or obligations guaranteed by the full faith and credit of the United States of America and (b) obligations of an agency or instrumentality of, or corporation owned, controlled or sponsored by, the United States of America that are generally considered in the securities industry to be implicit obligations of the United States of America. |
| Governmental Agency means (a) any international, foreign, federal, state, county or municipal government, or political subdivision thereof, (b) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body or (c) any court or administrative tribunal of competent jurisdiction. |
| Guarantors means, collectively, each Subsidiary of Borrower. |
| Guaranty Obligation means, as to any Person, any (a) guarantee by that Person of Indebtedness of, or other obligation performable by, any other Person or (b) assurance given by that Person to an obligee of any other Person with respect to the performance of an obligation by, or the financial condition of, such other Person, whether direct, indirect or contingent, including any purchase or repurchase agreement covering such obligation or any collateral security therefor, any agreement to provide funds (by means of loans, capital contributions or otherwise) to such other Person, any agreement to support the solvency or level of any balance sheet item of such other Person or any keep-well or other arrangement of whatever nature given for the purpose of assuring or holding harmless such obligee against loss with respect to any obligation of such other Person; provided, however, that the term Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation in respect of Indebtedness shall be deemed to be an amount equal to the stated or determinable amount of the related Indebtedness (unless the Guaranty Obligation is limited by its terms to a lesser amount, in which case to the extent of such amount) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person in good faith. The amount of any other Guaranty Obligation shall be deemed to be zero unless and until the amount thereof has been (or in accordance with Financial Accounting Standards Board Statement No. 5 should be) quantified and reflected or disclosed in the consolidated financial statements (or notes thereto) of Borrower and its Subsidiaries. |
| Hazardous Materials means oil or petrochemical products, poly-chlorinated biphenyls, asbestos, urea formaldehyde, flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including any substances considered hazardous substances, hazardous wastes, hazardous materials, infectious wastes, pollutant substances, solid waste or toxic substances under any Hazardous Materials Laws. |
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| Hazardous Materials Laws means all Laws pertaining to the treatment, transportation or disposal of Hazardous Materials on or about any Real Property owned or leased by Borrower or any Subsidiary thereof, or any portion thereof, including without limitation the following: the Federal Water Pollution Control Act (33 U.S.C.ss. 1251, et seq.), the Federal Resource Conservation and Recovery Act of 1976 (42 U.S.C.ss. 6901, et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.ss. 9601, et seq.) and the Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials Transportation Act, as amended (44 U.S.C.ss. 1801, et seq.), the Toxic Substances Control Act, 15 U.S.C.ss. 2601 et seq., the California Health and Safety Code (Section 25100, et seq.), the California Water Code and the California Administrative Code, in each case as such Laws are amended from time to time. |
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