SEC Filings

8-K
AECOM filed this Form 8-K on 03/14/2018
Entire Document
 

Exhibit 10.1

 

Execution Version

 

AMENDMENT NO. 5 TO CREDIT AGREEMENT

 

This AMENDMENT NO. 5 TO CREDIT AGREEMENT (this “Amendment”), dated as of March 13, 2018, is entered into by and among AECOM (formerly known as AECOM Technology Corporation), a Delaware corporation (the “Company”), US STAR LP, a Delaware limited partnership (the “Canadian Borrower”) and AECOM AUSTRALIA GROUP HOLDINGS PTY LTD (ACN 160 463 883), a company incorporated under the Corporations Act 2001 (Cth) of Australia (the “Australian Borrower” and together with the Canadian Borrower, the “New Borrowers”), certain subsidiaries of the Company as guarantors (the “Guarantors” and collectively with the Company and the New Borrowers, the “Loan Parties”) under the Credit Agreement (defined below), each Lender under the Credit Agreement that is a party hereto, and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Swing Line Lender and an L/C Issuer.

 

RECITALS

 

WHEREAS, the Company, the Administrative Agent and certain banks and financial institutions (the “Existing Lenders”) are parties to that certain Credit Agreement, dated as of October 17, 2014 (as previously amended, as amended hereby and as further amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement” and the Credit Agreement prior to giving effect to this Amendment being referred to as the “Existing Credit Agreement”), pursuant to which the Existing Lenders have extended certain revolving and term facilities to the Company;

 

WHEREAS, the Loan Parties have requested certain amendments to certain terms of the Existing Credit Agreement and certain other Loan Documents as provided herein, and the Administrative Agent and each of the undersigned Lenders have agreed to such requests, subject to the terms and conditions of this Amendment; and

 

WHEREAS, the Lenders identified on the signature pages hereto as “Departing Lenders” (the “Departing Lenders”) have agreed to assign their Commitments and Loans under the Pro Rata Facilities (defined below) pursuant to the terms hereof.

 

NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1.                                      Defined Terms.  Unless otherwise defined herein, capitalized terms used herein shall have the meanings, if any, assigned to such terms in the Credit Agreement, as amended by this Amendment.

 

2.                                      Amendments to Credit Agreement, Schedules and Exhibits.  Subject to the terms and conditions hereof and with effect from and after the Amendment Effective Date (defined below):

 

(a)                                 The Existing Credit Agreement (other than the Appendices, Schedules and Exhibits thereto) is hereby amended in its entirety to read in the form of Annex I attached hereto (which such amended Credit Agreement shall include the Revolving Credit Facility, the Term A US Facility, the Term A CAD Facility, the Term A AUD Facility and the Term B Facility (each as defined in the Credit Agreement) provided in this Amendment).

 

(b)                                 Schedule 2.01 to the Existing Credit Agreement is hereby amended by replacing such schedule with Schedule 2.01 attached as Annex II hereto (other than with respect to the Term B Facility as set forth in Schedule 2.01, which are maintained separately with the Administrative Agent).

 



 

(c)                                  The Exhibits to the Existing Credit Agreement are hereby amended by (i) amending and restating Exhibit A (Loan Notice) in its entirety, (ii) amending and restating Exhibit C-1 (Term A US Note) in its entirety, (iii) amending and restating Exhibit C-4 (Term A CAD Note) in its entirety and (iv) adding a new Exhibit C-5 (Term A AUD Note), in each case attached as Annex III hereto.

 

(d)                                 The schedules to the Existing Credit Agreement are hereby amended to amend and restate Schedule 1.01(d) (Fifth Amendment Existing Letters of Credit) in its entirety.

 

(e)                                  For the avoidance of doubt, each party hereto agrees and acknowledges that the obligations of each Borrower, including each of the New Borrowers, shall constitute “Guaranteed Liabilities” guaranteed by the Company and the other Guarantors under the Guaranty, and all such Guaranteed Liabilities shall constitute Obligations secured by the security interests granted by the grantors party to the Collateral Documents (it being understood that neither the Canadian Borrower nor the Australian Borrower is a party to the Guaranty or any Collateral Document).

 

3.                                      Facility Adjustments.

 

(a)                                 Notwithstanding anything to the contrary in the Existing Credit Agreement or the amended Credit Agreement, each party hereto agrees (i) that on the Amendment Effective Date the loans and commitments under the Revolving Credit Facility, Term A US Facility, Term A CAD Facility and Term A AUD Facility (collectively, the “Pro Rata Facilities”) and under the Term B Facility shall be as set forth on Schedule 2.01 attached as Annex II hereto and as described in the amended Credit Agreement attached as Annex I hereto, (ii) that the requisite assignments, payments and prepayments shall be deemed to be made in such amounts among the Lenders (including the Departing Lenders) and from each Lender to each other Lender, with the same force and effect as if such assignments were evidenced by applicable Assignment and Assumptions under the Credit Agreement or otherwise and (iii) to any adjustments to be made to the Register to effectuate such reallocations, assignments, payments and prepayments.  In connection therewith, any reallocation among the applicable Lenders (including the Departing Lenders) resulting from the adjustments of the Loans and Commitments under the Pro Rata Facilities shall all occur on the Amendment Effective Date in connection with this Amendment (the “Facility Adjustments”).  Notwithstanding anything to the contrary in Section 10.06 of the Credit Agreement or this Amendment, no other documents or instruments, including any Assignment and Assumption, shall be executed in connection with these assignments, payments and prepayments (all of which requirements are hereby waived), and such assignments shall be deemed to be made with all applicable representations, warranties and covenants as if evidenced by an Assignment and Assumption.  On the Amendment Effective Date, the Lenders shall make full cash settlement with each other either directly or through the Administrative Agent (including in the form of non-pro rata funding by any Lender that has increased its Commitment and/or Loans as of the Amendment Effective Date, including, without limitation, in an aggregate amount equal to the outstanding Loans of the Departing Lenders), and the Administrative Agent may make such adjustments between and among the applicable Lenders and the applicable Borrowers as are reasonably necessary to effectuate the Facility Adjustments, in each case as the Administrative Agent may direct or approve, with respect to all assignments, reallocations and other changes in Commitments and Loans under the Pro Rata Facilities, so that the outstanding Loans, Commitments and Applicable Percentages under the Pro Rata Facilities are as set forth on the revised Schedule 2.01 attached as Annex II hereto as of the Amendment Effective Date.

 

(b)                                 In connection therewith, and any prepayment, repayment or reallocation of Loans on the Amendment Effective Date as provided herein, each Lender party hereto hereby waives any requirement to pay any additional amounts required pursuant to Section 3.05 of the Credit Agreement.

 

2



 

(c)                                  Notwithstanding anything to the contrary in the Existing Credit Agreement or the amended Credit Agreement, each Lender party hereto agrees (i) that the Facility Adjustments provided by this Amendment shall each be effective upon the Amendment Effective Date simultaneously with the effectiveness of the amendments set forth in Section 2 above and (ii) that the conditions to effectiveness of the Facility Adjustments and the amendments set forth in Section 2 above are limited to the conditions to the effectiveness of this Amendment on the Amendment Effective Date as set forth below.

 

4.                                      Joinder of Guarantors and New Borrowers.

 

(a)                                 By its execution of this Amendment, each of The Hunt Corporation, an Indiana corporation, and Hunt Construction Group, Inc., an Indiana corporation (each, a “Joining Guarantor”), hereby becomes a party (i) to the Guaranty as a Guarantor and bound by all the terms, conditions, obligations, liabilities and undertakings of each Guarantor or to which each Guarantor is subject thereunder, including without limitation the joint and several, unconditional, absolute, continuing and irrevocable guarantee to the Administrative Agent for the benefit of the Secured Parties of the payment and performance in full of the Guaranteed Liabilities (as defined in the Guaranty) whether now existing or hereafter arising, all with the same force and effect as if such Joining Guarantor were a signatory to the Guaranty and (ii) the Security and Pledge Agreement as a Grantor and bound by all the terms, conditions, obligations, liabilities and undertakings of each Grantor or to which each Grantor is subject thereunder, including without limitation the grant pursuant to Sections 2 and 3 of the Security and Pledge Agreement of a security interest to the Administrative Agent for the benefit of the Secured Parties in the property and property rights constituting Collateral (as defined in Section 2 of the Security and Pledge Agreement) and Pledged Collateral (as defined in Section 3 of the Security and Pledge Agreement) of such Grantor or in which such Grantor has or may have or acquire an interest or the power to transfer rights therein, whether now owned or existing or hereafter created, acquired or arising and wheresoever located, as security for the payment and performance of the Obligations (as defined in the Security and Pledge Agreement), all with the same force and effect as if such Joining Guarantor were a signatory to the Security and Pledge Agreement.

 

(b)                                 By its execution of this Amendment, each of the New Borrowers hereby becomes a party to the Credit Agreement as a Borrower and a Designated Borrower and bound by all the terms, conditions, obligations, liabilities and undertakings of each Borrower or to which each Borrower is subject thereunder, all with the same force and effect as if such New Borrower were a signatory to the Credit Agreement.

 

(c)                                  Attached to this Amendment are duly completed schedules supplementing as thereon indicated the respective Schedules to (i) the Security and Pledge Agreement as Annex IV with respect to the Joining Guarantors and (ii) the Credit Agreement as Annex V (collectively, the “Supplemental Schedules”).  Each Joining Guarantor and New Borrower, as applicable, represents and warrants that the information contained on each of the Supplemental Schedules with respect to such Joining Guarantor and New Borrower, as applicable, and its properties and affairs is true, complete and accurate as of the date hereof.

 

5.                                      Representations and Warranties.  The Company and each other Loan Party (including, without limitation, the Joining Guarantors and the New Borrowers) hereby represents and warrants to the Administrative Agent and the Lenders as follows:

 

(a)                                 the execution, delivery and performance by each Loan Party of this Amendment have been duly authorized by all necessary corporate or other organizational action and do not and will not (i) contravene the terms of any of such Loan Party’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual Obligation to which the Company or any other Loan Party is a party or affecting such

 

3



 

Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Company or any other Loan Party or its property is subject; or (iii) violate any Law, except, in the cases of clause (ii) and (iii) as could not reasonably be expected to have a Material Adverse Effect;

 

(b)                                 this Amendment has been duly executed and delivered by each Loan Party, and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as may be limited by equitable principles and by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to creditors’ rights generally;

 

(c)                                  the representations and warranties of each Loan Party contained in Article V of the Credit Agreement and each other Loan Document are true and correct in all material respects (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by materiality standards, in all respects) as of such earlier date, and except that for purposes of this clause (c), the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, respectively;

 

(d)                                 no Default exists either before or after the effectiveness of this Amendment on the Amendment Effective Date.

 

6.                                      Effective Date.

 

(a)                                 This Amendment will become effective on the date (the “Amendment Effective Date”) on which the following conditions precedent are satisfied:

 

(i)                                     the Administrative Agent and the Lenders shall have received, in form and substance reasonably satisfactory to them, each of the following:

 

(A)                               counterparts of this Amendment duly executed by (1) the Company, (2) the New Borrowers, (3) the Guarantors, (4) the Administrative Agent, (5) each Lender with any Loan or Commitment under any of the Pro Rata Facilities upon the effectiveness of this Amendment, (6) each Lender with any Loan or Commitment under the Term B Facility upon the effectiveness of this Amendment and (7) any Departing Lenders;

 

(B)                               such certificates of resolutions or other action, incumbency certificates and/or other certificates of responsible officers of each Loan Party in connection with this Amendment and the incurrence of the Pro Rata Facilities and the Term B Facility as the Administrative Agent may reasonably require;

 

(C)                               such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Company, each New Borrower and each Guarantor is validly existing and in good standing (or similar, to the extent applicable with respect to the New Borrowers) in its jurisdiction of organization (which may be bring-down certificates with respect to such matters delivered at the closing of the Existing Credit Agreement or in connection with any prior amendment thereof);

 

4



 

(D)                               the documentation and other information with respect to each Loan Party that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, or by a Lender’s internal policies;

 

(E)                                projections prepared by management of the Company (prepared in good faith based upon assumptions that the Company believes to be reasonable at the time made and at the time such projections are so furnished to the Administrative Agent and Lenders) of balance sheets, income statements and cashflow statements of the Company and its Subsidiaries, giving effect to this Amendment, the Pro Rata Facilities and the Term B Facility, which will be quarterly for fiscal year 2018 and annually thereafter for the term of the Facilities (and which will not be inconsistent with information provided to the Administrative Agent and made available to the Lenders);

 

(F)                                 satisfactory opinions of counsel (including internal counsel, foreign counsel and, to the extent reasonably requested by the Administrative Agent, other local counsel) to the Loan Parties (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the Credit Agreement after giving effect to this Amendment, as the Lenders party to this Amendment shall reasonably require), which shall be addressed to the Lenders on the Amendment Effective Date and expressly permit reliance by successors and permitted assignees of the Lenders to the extent set forth therein;

 

(G)                               satisfactory evidence that the Administrative Agent (on behalf of the Lenders) shall have a valid and perfected first priority (subject to exceptions set forth in the Loan Documents) lien and security interest in the Collateral after giving effect to this Amendment;

 

(H)                              a certificate of the chief financial officer or treasurer of the Company certifying that as of the Amendment Effective Date (after giving effect to (x) transactions contemplated to occur on or prior to the Amendment Effective Date, including, without limitation, the closing of this Amendment and the effectiveness of the Facilities, the incurrence of Indebtedness related thereto, and the repayment of other Indebtedness to occur on or prior to the Amendment Effective Date and (y) the repayment or redemption of the Senior 2022 Notes (as defined in the Credit Agreement) (even if occurring after the Amendment Effective Date)), (1) all of the representations and warranties in the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (2) no Default or Event of Default shall have occurred and be continuing, or would result from the occurrence of the Amendment Effective Date, (3) the Company is in pro forma compliance with the financial covenants set forth in Section 7.11 of the Credit Agreement and (4) the Company and its Subsidiaries, on a consolidated basis, are Solvent; and

 

(I)                                   for each Lender requesting one at least three Business Days prior to the Amendment Effective Date (but without prejudice to the right of any Lender to request a Note under Section 2.11(a) of the Credit Agreement), a Note executed by the applicable Borrowers in favor of such Lender with respect to the applicable Facility;

 

5



 

(ii)                                  there shall not have occurred since September 30, 2017 any event or condition that has had or would reasonably be expected either individually or in the aggregate, to have a Material Adverse Effect;

 

(iii)                               the Administrative Agent shall be reasonably satisfied that as of the Amendment Effective Date, arrangements shall have been made to repay all outstanding principal and accrued but unpaid interest, along with any make-whole amount or other premium, under the Senior 2022 Notes (or to deposit or defease amounts sufficient to make such payments) promptly after the Amendment Effective Date;

 

(iv)                              all accrued interest, fees (including Commitment Fees), premiums and other amounts with respect to Loans under the Credit Agreement (prior to giving effect to this Amendment) shall have been paid in full (unless the Administrative Agent and the Company agree to the continuation of the accrual thereof and the payment at a later date pursuant to the Credit Agreement);

 

(v)                                 the Departing Lenders shall have received payment of all principal on the Loans owing thereto with respect to the applicable Facilities in connection with the assignments provided in Section 3(a) above; and

 

(vi)                              all reasonable and documented costs and expenses of MLPFS and the Administrative Agent (including the reasonable and documented fees, disbursements and other out-of-pocket charges of counsel (including appropriate special and local counsel, including Canadian and Australian counsel) for the Administrative Agent) shall have been paid to the extent that the Company has received an invoice therefor at least three Business Days prior to the Amendment Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced), and all fees pursuant to any written letter between MLPFS or any other Lender or Arranger, on the one hand, and the Company on the other hand, or pursuant to the Credit Agreement shall have been paid.

 

(b)                                 For purposes of determining compliance with the conditions specified in this Section 6, each Lender that has executed this Amendment and delivered it to the Administrative Agent shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required under this Section 6 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 this Amendment being deemed effective by the Administrative Agent on the Amendment Effective Date specifying its objection thereto.

 

(c)                                  From and after the Amendment Effective Date, the Credit Agreement is amended as set forth herein.

 

(d)                                 Except as expressly amended and/or waived pursuant hereto, the Credit Agreement and each other Loan Document shall remain unchanged and in full force and effect and each is hereby ratified and confirmed in all respects, and any waiver contained herein shall be limited to the express purpose set forth herein and shall not constitute a waiver of any other condition or circumstance under or with respect to the Credit Agreement or any of the other Loan Documents.

 

(e)                                  The Administrative Agent will notify the Company and the Lenders of the occurrence of the Amendment Effective Date.

 

6



 

7.                                      No Novation; Reaffirmation.  Neither the execution and delivery of this Amendment nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Credit Agreement or of any of the other Loan Documents or any obligations thereunder. The Company and each other Loan Party, (a) acknowledges and consents to all of the terms and conditions of this Amendment (including, without limitation, the amended Credit Agreement attached hereto as Annex I), (b) affirms all of its obligations under the Loan Documents, and (c) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge any Loan Party’s obligations under the Loan Documents.

 

8.                                      New Lenders.  By its execution of this Amendment, each Lender other than an Existing Lender that is providing any portion of the Facilities after giving effect to this Amendment (each a “New Lender”) hereby confirms and agrees that, on and after the Amendment Effective Date, it shall be a party to the Credit Agreement as a Lender, shall have all of the rights and be obligated to perform all of the obligations of a Lender thereunder and its Loans and Commitments to the Facilities shall be as set forth on the revised Schedule 2.01 attached as Annex II hereto (or, with respect to the Term B Facility, maintained with the Administrative Agent).  Each New Lender severally, and not jointly, further (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement, (iii) from and after the Amendment Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and shall have the obligations of a Lender thereunder, and (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.01 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 the Credit Agreement on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, any other Lender, agent or arranger; and (b) agrees that (i) 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, and (ii) it will perform in accordance with their terms all of the obligations that by the terms of the Loan Documents are required to be performed by it as a Lender.

 

9.                                      Departing Lenders. By its execution of this Agreement, each of the parties signatory hereto acknowledges and agrees that, upon the occurrence of the Amendment Effective Date, (a) each Departing Lender shall cease to be a Lender under the Credit Agreement and (b) each Departing Lender shall have no further rights or obligations as a Lender under the Credit Agreement, except to the extent of rights and obligations that expressly survive a Lender’s assignment of its commitments pursuant to Section 10.06 of the Credit Agreement.  The Departing Lenders are a party to this Agreement solely for the purpose of evidencing their agreement to Section 3(a) and this Section 9.

 

10.                               Lender Representation. Each Lender hereby agrees to, and makes, as of the Amendment Effective Date the representations and warranties set forth in Section 9.12 of the Credit Agreement, as amended by this Amendment.

 

11.                               Miscellaneous.

 

(a)                                 Except as herein expressly amended, all terms, covenants and provisions of the Credit Agreement and each other Loan Document are and shall remain in full force and effect.  All references in any Loan Document to the “Credit Agreement” or “this Agreement” (or similar terms intended to reference the Credit Agreement) shall henceforth refer to the Credit Agreement as amended by this Amendment.  This Amendment shall be deemed incorporated into, and a part of, the Credit Agreement.

 

(b)                                 This Amendment shall be binding upon and inure to the benefit of the parties hereto, each other Lender and each other Loan Party, and their respective successors and assigns.

 

7



 

(c)                                  THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 10.14 AND 10.15 OF THE CREDIT AGREEMENT RELATING TO GOVERNING LAW, VENUE AND WAIVER OF RIGHT TO TRIAL BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE INCORPORATED HEREIN IN FULL.

 

(d)                                 This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Amendment and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 6, this Amendment shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties required to be a party hereto.  Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.  This Amendment may not be amended except in accordance with the provisions of Section 10.01 of the Credit Agreement.

 

(e)                                  If any provision of this Amendment or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment and the other Loan Documents shall not be affected or impaired thereby and (b) 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.

 

(f)                                   The Company agrees to pay in accordance with Section 10.04 of the Credit Agreement all reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates in connection with the preparation, execution, delivery, administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder and thereunder.

 

(g)                                  This Amendment shall constitute a “Loan Document” under and as defined in the Credit Agreement.

 

[Signature Pages Follow.]

 

8



 

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

 

 

 

COMPANY:

 

 

 

 

 

AECOM

 

 

 

 

 

 

 

 

 

 

By:

/s/ Keenan Driscoll

 

 

Name:

Keenan Driscoll

 

 

Title:

Senior Vice President and Treasurer

 

 

 

 

 

 

 

NEW BORROWERS:

 

 

 

 

 

US STAR LP

 

 

 

 

 

By: AECOM BC 2 Holding ULC,

 

 

Its General Partner

 

 

 

 

 

 

By:

/s/ Rosalind Liu

 

 

Name:

Rosalind Liu

 

 

Title:

Director

 

 

 

 

Signed for and on behalf of

 

AECOM AUSTRALIA GROUP HOLDINGS PTY LTD by a duly appointed attorney

 

in the presence of:

 

 

 

 

 

 

/s/ Charles Szurgot

 

/s/ Keenan Driscoll

Signature of witness

 

Signature of attorney (I have no notice of revocation of the power of attorney under which I sign this document)

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

GUARANTORS:

 

 

 

 

 

AECOM GOVERNMENT SERVICES, INC.

 

 

AECOM TECHNICAL SERVICES, INC.

 

 

TISHMAN CONSTRUCTION CORPORATION

 

 

AECOM INTERNATIONAL DEVELOPMENT, INC.

 

 

AECOM NATIONAL SECURITY PROGRAMS, INC.

 

 

AECOM C&E, INC.

 

 

AECOM SERVICES, INC.

 

 

AECOM SPECIAL MISSIONS SERVICES, INC.

 

 

AECOM USA, INC.

 

 

EDAW, INC.

 

 

MT HOLDING CORP.

 

 

MCNEIL SECURITY, INC.

 

 

THE EARTH TECHNOLOGY CORPORATION (USA)

 

 

TISHMAN CONSTRUCTION CORPORATION OF NEW YORK

 

 

 

 

 

 

 

 

 

 

By:

/s/ Keenan Driscoll

 

 

Name:

Keenan Driscoll

 

 

Title:

Assistant Treasurer

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

AECOM GLOBAL II, LLC

 

WASHINGTON DEMILITARIZATION COMPANY, LLC

 

URS FEDERAL SERVICES, INC.

 

URS GROUP, INC.

 

URS HOLDINGS, INC.

 

WASHINGTON GOVERNMENT ENVIRONMENTAL SERVICES COMPANY LLC

 

AECOM ENERGY & CONSTRUCTION, INC.

 

URS CORPORATION

 

URS GLOBAL HOLDINGS, INC.

 

EG&G DEFENSE MATERIALS, INC.

 

CLEVELAND WRECKING COMPANY

 

LEAR SIEGLER LOGISTICS INTERNATIONAL, INC.

 

RUST CONSTRUCTORS INC.

 

AECOM E&C HOLDINGS, INC.

 

URS FS COMMERCIAL OPERATIONS, INC.

 

URS FEDERAL SERVICES INTERNATIONAL, INC.

 

AECOM INTERNATIONAL, INC.

 

AECOM NUCLEAR LLC

 

URS OPERATING SERVICES, INC.

 

URS RESOURCES, LLC

 

AECOM N&E TECHNICAL SERVICES LLC

 

URS CORPORATION — OHIO

 

AMAN ENVIRONMENTAL CONSTRUCTION, INC.

 

URS CORPORATION SOUTHERN

 

WGI GLOBAL INC.

 

AECOM INTERNATIONAL PROJECTS, INC.

 

E.C. DRIVER & ASSOCIATES, INC.

 

URS CONSTRUCTION SERVICES, INC.

 

B.P. BARBER & ASSOCIATES, INC.

 

FORERUNNER CORPORATION

 

URS ALASKA, LLC

 

AECOM GREAT LAKES, INC.

 

URS CORPORATION - NEW YORK

 

URS CORPORATION - NORTH CAROLINA

 

 

 

 

 

 

By:

/s/ Keenan Driscoll

 

Name:

Keenan Driscoll

 

Title:

Assistant Treasurer

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

THE HUNT CORPORATION

 

 

 

 

 

 

By:

/s/ Keenan Driscoll

 

Name:

Keenan Driscoll

 

Title:

Assistant Treasurer

 

 

 

 

 

HUNT CONSTRUCTION GROUP, INC.

 

 

 

 

 

 

By:

/s/ Keenan Driscoll

 

Name:

Keenan Driscoll

 

Title:

Assistant Treasurer

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BANK OF AMERICA, N.A., as Administrative Agent

 

 

 

 

 

 

By:

/s/ Maurice E. Washington

 

Name:

Maurice E. Washington

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender

 

 

 

 

 

 

By:

/s/ Jeanette Lu

 

Name:

Jeanette Lu

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

BANK OF AMERICA, N.A. AUSTRALIAN BRANCH, as a Lender

 

 

EXECUTED by Leonidas Zygouras

)

 

as attorney for BANK OF AMERICA, N.A. Australian Branch under power of attorney dated 6 February 2018 in the presence of:

)
)
)

 

 

)

 

 

)

 

/s/ Helmi Yuselvia

)

 

Signature of witness

)

/s/ Leonidas Zygouras

Helmi Yuselvia

)
)

By executing this deed the attorney states that the attorney has received no notice of revocation of the power of attorney

Name of witness (block letters)

)

 

 

)

 

 

)

 

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

JP MORGAN CHASE BANK, N.A., as a Lender

 

 

 

 

 

 

By:

/s/ Ling Li

 

Name:

Ling Li

 

Title:

Executive Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

JPMORGAN CHASE BANK, N.A., Sydney Branch as a Lender

 

 

 

 

 

 

By:

/s/ Carolyn Hely

 

Name:

Carolyn Hely

 

Title:

Executive Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

THE BANK OF NOVA SCOTIA, as a Lender and L/C Issuer

 

 

 

 

 

 

By:

/s/ Michael Grad

 

Name:

Michael Grad

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

BANK OF NOVA SCOTIA, AUSTRALIA BRANCH, as a Lender

 

 

EXECUTED by Scott Jindrich under a power of attorney in the presence of:

)
)

 

 

)

 

 

)

 

/s/ Michael Grad

)

/s/ Scott Jindrich

Signature of witness

)
)

By executing this deed the attorney states that the attorney has received no notice of revocation of the power of attorney

 

)

 

 

)

 

Michael Grad

)

Scott Jindrich

Full Name of Witness

)

Full Name of Attorney

 

)

 

 

)

 

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BNP PARIBAS, as a Lender

 

 

 

 

 

 

By:

/s/ Brendan Heneghan

 

Name:

Brendan Heneghan

 

Title:

Director

 

 

 

 

 

 

By:

/s/ Ade Adedeji

 

Name:

Ade Adedeji

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender

 

 

 

 

 

 

By:

/s/ Jill Wong

 

Name:

Jill Wong

 

Title:

Director

 

 

 

 

 

 

By:

/s/ Gordon Yip

 

Name:

Gordon Yip

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BMO HARRIS BANK N.A., as a Lender

 

 

 

 

By:

/s/ Michael Gift

 

Name: Michael Gift

 

Title: Director

 

 

 

 

 

BANK OF MONTREAL, as a Lender

 

 

 

 

By:

/s/ Cathy Kelina

 

Name: Cathy Kelina on Behalf of Helen Alverez-Hernandez, Managing Director

 

Title: Associate

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CAPTIAL ONE, N.A., as a Lender

 

 

 

 

 

 

By:

/s/ Gina Monette

 

Name:

Gina Monette

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CITIBANK, N.A., as a Lender

 

 

 

 

 

 

By:

/s/ Millie Schild

 

Name:

Millie Schild

 

Title:

Vice President

 

 

 

 

 

CITIBANK, N.A., acting through its Canada Branch, as a Lender

 

 

 

 

 

 

By:

/s/ Millie Schild

 

Name:

Millie Schild

 

Title:

Vice President

 

 

 

 

 

CITIBANK, N.A., acting through its Sydney Branch, as a Lender

 

 

 

 

 

 

By:

/s/ Millie Schild

 

Name:

Millie Schild

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

COMPASS BANK DBA BBVA COMPASS, as a Lender

 

 

 

 

 

 

By:

/s/ Aaron Loyd

 

Name:

Aaron Loyd

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIFTH THIRD BANK, as a Lender

 

 

 

 

 

 

By:

/s/ Robert Mangers

 

Name:

Robert Mangers

 

Title:

Dirctor, VP

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

HSBC BANK USA, N.A., as a Lender

 

 

 

 

 

 

By:

/s/ Patrick Mueller

 

Name:

Patrick Mueller

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

HSBC BANK CANADA, as a Lender

 

 

 

 

 

 

By:

/s/ Eric Striegler

 

Name:

Eric Striegler

 

Title:

Head of Multinationals

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

THE HONKONG AND SHANGHAI BANKING CORPORATION LIMITED, SYDNEY BRANCH, as a Lender

 

 

 

 

 

 

By:

/s/ Jeremy White

 

Name:

Jeremy White

 

Title:

State Manager, Queensland

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

MIZUHO BANK, LTD., as a Lender

 

 

 

 

 

 

By:

/s/ Donna DeMagistris

 

Name:

Donna DeMagistris

 

Title:

Authorized Signatory

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

MUFG UNION BANK, N.A., as a Lender

 

 

 

 

 

 

 

By:

/s/ Lauren Hom

 

Name:

Lauren Hom

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender

 

 

 

 

 

 

 

By:

/s/ Lauren Hom

 

Name:

Lauren Hom

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

SUNTRUST BANK, as a Lender

 

 

 

 

 

 

 

By:

/s/ Christian Sumulong

 

Name:

Christian Sumulong

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

TB BANK, N.A., as a Lender

 

 

 

 

 

 

 

By:

/s/ Craig Welch

 

Name:

Craig Welch

 

Title:

Senior Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

 

 

 

 

 

 

 

By:

/s/ Brett Wise

 

Name:

Brett Wise

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

SUMITOMO MITSUI BANKING CORPORATION, as a Lender

 

 

 

 

 

 

 

By:

/s/ James D. Weinstein

 

Name:

James D. Weinstein

 

Title:

Managing Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as a Lender

 

 

 

 

 

 

 

By:

/s/ Ford Young

 

Name:

Ford Young

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

By:

/s/ James Finn

 

Name:

James Finn

 

Title:

Authorized Signatory

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

PNC BANK, NA as a Lender

 

 

 

 

 

 

 

By:

/s/ Scott Miller

 

Name:

Scott Miller

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

U.S. BANK NATIONAL ASSOCIATION, as a Lender

 

 

 

 

 

 

 

By:

/s/ Marty McDonald

 

Name:

Marty McDonald

 

Title:

AVP

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BARCLAYS BANK PLC, as a Lender

 

 

 

 

 

 

 

By:

/s/ Patricia Oreta

 

Name:

Patricia Oreta

 

Title:

Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH, as a Lender

 

 

 

 

 

 

 

By:

/s/ Jing Qu

 

Name:

Jing Qu

 

Title:

Assistant Vice President

 

 

 

 

 

 

 

By:

/s/ Gang Duan

 

Name:

Gang Duan

 

Title:

Executive Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

ZB, N.A. dba CALIFORNIA BANK & TRUST, as a Lender

 

 

 

 

 

 

 

By:

/s/ Ursula St. Geme

 

Name:

Ursula St. Geme

 

Title:

Senior Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

LLOYD BANK PLC, as a Lender

 

 

 

 

 

 

 

By:

/s/ Kamala Basdeo

 

Name:

Kamala Basdeo

 

Title:

Assistant Manager, Transaction Execution

 

 

 

 

 

 

 

By:

/s/ Jennifer Larrow

 

Name:

Jennifer Larrow

 

Title:

Assistant Manager, Transaction Execution

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

MORGAN STANLEY BANK, N.A., as a Lender

 

 

 

 

 

 

 

By:

/s/ Michael King

 

Name:

Michael King

 

Title:

Authorized Signatory

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CRÉDIT INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH, as a Lender

 

 

 

 

 

 

 

By:

/s/ Clifford Abramsky

 

Name:

Clifford Abramsky

 

Title:

Managing Director

 

 

 

 

 

 

 

By:

/s/ Garry Weiss

 

Name:

Garry Weiss

 

Title:

Managing Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

RAYMOND JAMES BANK, as a Lender

 

 

 

 

 

 

 

By:

/s/ Jason Williams

 

Name:

Jason Williams

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIRST MIDWEST BANK, as a Lender

 

 

 

 

 

 

 

By:

/s/ Michael Trunck

 

Name:

Michael Trunck

 

Title:

Senior Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BANCO DE SABADELL, S.A., MIAMI BRANCH, as a Lender

 

 

 

 

 

 

 

By:

/s/ Enrique Castillo

 

Name:

Enrique Castillo

 

Title:

Head of Corporate Banking

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH, as a Lender

 

 

 

 

 

 

 

By:

/s/ Ming Che Yang

 

Name:

Ming Che Yang

 

Title:

VP & DGM

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

STATE BANK OF INDIA CALIFORNIA, as a Lender

 

 

 

 

 

 

 

By:

/s/ Srinivasa Rao Vallamchitti

 

Name:

Srinivasa Rao Vallamchitti

 

Title:

Vice President (Credit)

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CATHAY BANK, as a Lender

 

 

 

 

 

 

 

By:

/s/ Nancy A. Moore

 

Name:

Nancy A. Moore

 

Title:

Senior Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

E.SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH, as a Lender

 

 

 

 

 

 

 

By:

/s/ Edward Chen

 

Name:

Edward Chen

 

Title:

SVP & General Manager

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BOKF, NA, as a Lender

 

 

 

 

 

 

 

By:

/s/ Paul E. Johnson

 

Name:

Paul E. Johnson

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

AMERICAN SAVINGS BANK F.S.B., as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Cyd Miysashiro

 

Name:

Cyd Miysashiro

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

BANK OF TAIWAN, NEW YORK BRANCH, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Sunny Suen

 

Name:

Sunny Suen

 

Title:

VP & Deputy General Manager

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

CENTRAL PACIFIC BANK, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Carl A. Morita

 

Name:

Carl A. Morita

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

COMERICA BANK, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Liz V. Hulley

 

Name:

Liz V. Hulley

 

Title:

AVP

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIRST COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Albert Pai

 

Name:

Albert Pai

 

Title:

Assistant General Manager

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIRSTBANK PUERTO RICO d/b/a

 

FIRSTBANK FLORIDA, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Jose M. Lacasa

 

Name:

Jose M. Lacasa

 

Title:

SVP Corporate Banking

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIRST HAWAIIAN BANK, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Darlene N. Blakeney

 

Name:

Darlene N. Blakeney

 

Title:

Senior Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

FIRST TENNESSEE BANK, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Russell Nenon

 

Name:

Russell Nenon

 

Title:

V-P

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

LAND BANK OF TAIWAN LOS ANGELES BRANCH, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Henry Leu

 

Name:

Henry Leu

 

Title:

SVP & GM

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

STIFEL BANK & TRUST, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Timothy Hill

 

Name:

Timothy Hill

 

Title:

Vice President

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

TAIWAN BUSINESS BANK, LOS ANGELES BRANCH, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Sam Chiu

 

Name:

Sam Chiu

 

Title:

General Manager

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

TAIWAN COOPERATIVE BANK, LOS ANGELES BRANCH, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Tao-Lun Lin

 

Name:

Tao-Lun Lin

 

Title:

VP & General Manager

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

 

WESTPAC BANKING CORPORATION, as a Departing Lender

 

 

 

 

 

 

 

By:

/s/ Stuart Brown

 

Name:

Stuart Brown

 

Title:

Executive Director

 

AECOM

Signature Pages

Amendment No.5 to Credit Agreement

 



 

ANNEX I

 

[Form of Amended Credit Agreement Attached]

 



 

Published CUSIP Number:  00766WAJ2

Revolving Loan Facility CUSIP Number:  00766WAK9

Term A US Loan Facility CUSIP Number: 00766WAQ6

Term A CAD Loan Facility CUSIP Number:  00766WAR4

Term A AUD Loan Facility CUSIP Number:  00766WAS2

Term B Loan Facility CUSIP Number:  00766WAT0

 

SYNDICATED FACILITY AGREEMENT

(as amended through Amendment No. 5 to Credit Agreement dated as of March 13, 2018)

 

Dated as of October 17, 2014

 

among

 

AECOM

and

CERTAIN SUBSIDIARIES OF AECOM,

 

as Borrowers,

 

BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
an L/C Issuer,

 

and

 

The Other Lenders Party Hereto

 

BMO HARRIS BANK N.A.,

CAPITAL ONE, NATIONAL ASSOCIATION,

CITIBANK, N.A.,

BBVA COMPASS,

FIFTH THIRD BANK,

HSBC BANK USA, NATIONAL ASSOCIATION,

MIZUHO BANK, LTD.,

MUFG UNION BANK, N.A.,

SUNTRUST BANK,

TD BANK, N.A.,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents

 

BANK OF AMERICA, N. A.,

JPMORGAN CHASE BANK, N.A.,

THE BANK OF NOVA SCOTIA,

BNP PARIBAS SECURITIES CORP., and

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Joint Lead Arrangers and Joint Bookrunners

 



 

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1

 

 

 

1.01

Defined Terms

1

 

 

 

1.02

Other Interpretive Provisions

53

 

 

 

1.03

Accounting Terms

54

 

 

 

1.04

Rounding

55

 

 

 

1.05

Exchange Rates; Currency Equivalents

55

 

 

 

1.06

Additional Alternative Currencies

56

 

 

 

1.07

Change of Currency

57

 

 

 

1.08

Times of Day

57

 

 

 

1.09

Letter of Credit Amounts

57

 

 

 

1.10

Guaranteed Amounts

57

 

 

 

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

58

 

 

 

2.01

The Loans

58

 

 

 

2.02

Borrowings, Conversions and Continuations of Loans

59

 

 

 

2.03

Letters of Credit

61

 

 

 

2.04

Swing Line Loans

70

 

 

 

2.05

Prepayments

73

 

 

 

2.06

Termination or Reduction of Commitments

77

 

 

 

2.07

Repayment of Loans

78

 

 

 

2.08

Interest

79

 

 

 

2.09

Fees

80

 

 

 

2.10

Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate

81

 

 

 

2.11

Evidence of Debt

81

 

 

 

2.12

Payments Generally; Administrative Agent’s Clawback

82

 

 

 

2.13

Sharing of Payments by Lenders

84

 

 

 

2.14

Designation of Unrestricted and Restricted Subsidiaries

84

 

 

 

2.15

Designated Borrowers

85

 

 

 

2.16

Increase in Commitments

86

 

 

 

2.17

Cash Collateral

90

 

 

 

2.18

Defaulting Lenders

91

 

 

 

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

94

 

 

 

3.01

Taxes

94

 

 

 

3.02

Illegality

100

 

i



 

3.03

Inability to Determine Rates

100

 

 

 

3.04

Increased Costs; Reserves on Eurocurrency Rate Loans

102

 

 

 

3.05

Compensation for Losses

104

 

 

 

3.06

Mitigation Obligations; Replacement of Lenders

104

 

 

 

3.07

Survival

105

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

105

 

 

 

4.01

Conditions of Initial Credit Extension

105

 

 

 

4.02

Conditions to All Credit Extensions

108

 

 

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES

109

 

 

 

5.01

Existence, Qualification and Power

109

 

 

 

5.02

Authorization; No Contravention

109

 

 

 

5.03

Governmental Authorization; Other Consents

109

 

 

 

5.04

Binding Effect

109

 

 

 

5.05

Financial Statements; No Material Adverse Effect

110

 

 

 

5.06

Litigation

110

 

 

 

5.07

No Default

111

 

 

 

5.08

Ownership of Property; Liens

111

 

 

 

5.09

Environmental Compliance

111

 

 

 

5.10

Insurance

111

 

 

 

5.11

Taxes

111

 

 

 

5.12

ERISA Compliance

111

 

 

 

5.13

Subsidiaries; Equity Interests; Loan Parties

112

 

 

 

5.14

Margin Regulations; Investment Company Act

112

 

 

 

5.15

Disclosure

113

 

 

 

5.16

Compliance with Laws

113

 

 

 

5.17

Intellectual Property; Licenses, Etc.

113

 

 

 

5.18

Solvency

113

 

 

 

5.19

Sanctions

113

 

 

 

5.20

Anti-Corruption Laws

113

 

 

 

5.21

Collateral Documents

113

 

 

 

5.22

Representations as to Foreign Obligors

114

 

 

 

5.23

EEA Financial Institutions

114

 

 

 

ARTICLE VI

AFFIRMATIVE COVENANTS

115

 

 

 

6.01

Financial Statements

115

 

 

 

6.02

Certificates; Other Information

116

 

ii



 

6.03

Notices

117

 

 

 

6.04

Payment of Obligations

118

 

 

 

6.05

Preservation of Existence, Etc.

118

 

 

 

6.06

Maintenance of Properties

118

 

 

 

6.07

Maintenance of Insurance

119

 

 

 

6.08

Compliance with Laws

119

 

 

 

6.09

Books and Records

119

 

 

 

6.10

Inspection Rights

119

 

 

 

6.11

Use of Proceeds

120

 

 

 

6.12

Collateral and Guarantee Requirement; Collateral Information

120

 

 

 

6.13

Compliance with Environmental Laws

121

 

 

 

6.14

Further Assurances

121

 

 

 

6.15

[Reserved.]

122

 

 

 

6.16

FCPA; Sanctions

122

 

 

 

6.17

Post-Closing Requirements

122

 

 

 

6.18

Approvals and Authorizations

122

 

 

 

ARTICLE VII

NEGATIVE COVENANTS

122

 

 

 

7.01

Liens

122

 

 

 

7.02

Indebtedness

124

 

 

 

7.03

Investments

127

 

 

 

7.04

Fundamental Changes

129

 

 

 

7.05

Dispositions

129

 

 

 

7.06

Restricted Payments

130

 

 

 

7.07

Change in Nature of Business

132

 

 

 

7.08

Transactions with Affiliates

132

 

 

 

7.09

Burdensome Agreements

132

 

 

 

7.10

Use of Proceeds

133

 

 

 

7.11

Financial Covenants

133

 

 

 

7.12

Sanctions

133

 

 

 

7.13

Changes in Fiscal Year

133

 

 

 

7.14

Anti-Corruption Laws

133

 

 

 

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

134

 

 

 

8.01

Events of Default

134

 

 

 

8.02

Remedies upon Event of Default

136

 

 

 

8.03

Application of Funds

137

 

iii



 

ARTICLE IX

ADMINISTRATIVE AGENT

138

 

 

 

9.01

Appointment and Authority

138

 

 

 

9.02

Rights as a Lender

139

 

 

 

9.03

Exculpatory Provisions

139

 

 

 

9.04

Reliance by Administrative Agent

140

 

 

 

9.05

Delegation of Duties

140

 

 

 

9.06

Resignation of Administrative Agent

140

 

 

 

9.07

Non-Reliance on Administrative Agent and Other Lenders

142

 

 

 

9.08

No Other Duties, Etc.

142

 

 

 

9.09

Administrative Agent May File Proofs of Claim; Credit Bidding

142

 

 

 

9.10

Collateral and Guaranty Matters

143

 

 

 

9.11

Secured Cash Management Agreements, Secured Hedge Agreements and Secured Performance Letters of Credit

144

 

 

 

9.12

Lender ERISA Representation

144

 

 

 

ARTICLE X

MISCELLANEOUS

146

 

 

 

10.01

Amendments, Etc.

146

 

 

 

10.02

Notices; Effectiveness; Electronic Communications

148

 

 

 

10.03

No Waiver; Cumulative Remedies; Enforcement

150

 

 

 

10.04

Expenses; Indemnity; Damage Waiver

151

 

 

 

10.05

Payments Set Aside

153

 

 

 

10.06

Successors and Assigns

153

 

 

 

10.07

Treatment of Certain Information; Confidentiality

158

 

 

 

10.08

Right of Setoff

158

 

 

 

10.09

Interest Rate Limitation

159

 

 

 

10.10

Counterparts; Integration; Effectiveness

159

 

 

 

10.11

Survival of Representations and Warranties

159

 

 

 

10.12

Severability

160

 

 

 

10.13

Replacement of Lenders

160

 

 

 

10.14

Governing Law; Jurisdiction; Etc.

161

 

 

 

10.15

WAIVER OF JURY TRIAL

161

 

 

 

10.16

No Advisory or Fiduciary Responsibility

162

 

 

 

10.17

Electronic Execution of Assignments and Certain Other Documents

162

 

 

 

10.18

USA PATRIOT Act

163

 

 

 

10.19

Judgment Currency

163

 

 

 

10.20

Release and Reinstatement of Collateral

163

 

iv



 

10.21

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

164

 

 

 

10.22

Australian Code of Banking Practice

164

 

 

 

10.23

Liability of Certain Loan Parties

164

 

v



 

SCHEDULES

 

 

 

1.01(a)

 

Pending Minority Investments

 

1.01(b)

 

Mortgaged Property

 

1.01(c)

 

Existing Letters of Credit

 

1.01(d)

 

Fifth Amendment Existing Letters of Credit

 

2.01

 

Commitments and Applicable Percentages

 

5.09

 

Environmental Matters

 

5.13

 

Subsidiaries; Equity Interests; Loan Parties

 

6.17

 

Post-Closing Matters

 

7.01

 

Existing Liens

 

7.02

 

Existing Indebtedness

 

7.03

 

Existing Investments

 

10.02

 

Administrative Agent’s Office, Certain Addresses for Notices

 

EXHIBITS

 

 

Form of

 

 

 

 

 

 

A

 

Loan Notice

 

B

 

Swing Line Loan Notice

 

C-1

 

Term A US Note

 

C-2

 

Term B Note

 

C-3

 

Revolving Credit Note

 

C-4

 

Term A CAD Note

 

C-5

 

Term A AUD Note

 

D

 

Compliance Certificate

 

E

 

Assignment and Assumption

 

F

 

United States Tax Compliance Certificate

 

G

 

Funding Indemnity Letter

 

H

 

Designated Borrower Request and Assumption Agreement

 

I

 

Designated Borrower Notice

 

J

 

Solvency Certificate

 

K

 

Prepayment Notice

 

vi



 

SYNDICATED FACILITY AGREEMENT

 

This SYNDICATED FACILITY AGREEMENT (“Agreement”) is entered into as of October 17, 2014, among AECOM, a Delaware corporation (the “Company”), US STAR LP, a Delaware limited partnership (the “Canadian Borrower”), AECOM AUSTRALIA GROUP HOLDINGS PTY LTD (ACN 160 463 883), a company incorporated under the Corporations Act 2001 (Cth) of Australia (the “Australian Borrower”), certain Subsidiaries of the Company that are Restricted Subsidiaries and are from time to time party hereto pursuant to Section 2.15 (each a “Designated Borrower” and, together with the Company, the Canadian Borrower and the Australian Borrower, the “Borrowers” and each, a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.

 

PRELIMINARY STATEMENTS:

 

The Company has requested that the Lenders provide a term A loan facility in Dollars, a term A loan facility in Canadian Dollars, a term A loan facility in Australian Dollars, a term B loan facility, and a revolving credit facility, and the Lenders have indicated their willingness to lend and the L/C Issuers have indicated their willingness to issue letters of credit, in each case, on the terms and subject to the 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

 

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

 

Acquisition” means the consummation of the Mergers, as defined in and pursuant to the Acquisition Agreement.

 

Acquisition Agreement” means that certain Agreement and Plan of Merger, as amended, restated, supplemented or otherwise modified from time to time (and with respect to any amendment, restatement, supplement or modification on or prior to the Closing Date, to the extent that such amendment, supplement or modification (including, without limitation, any updates to the exhibits, annexes and schedules thereto) is not material and adverse to the interests of the Lenders (in their capacities as such), either individually or in the aggregate, without the prior written consent of the Arrangers, such consent not to be unreasonably withheld, delayed or conditioned) among the Company, ACM Mountain I, LLC, ACM Mountain II, LLC and URS Corporation dated as of July 11, 2014, including all schedules and exhibits thereto.

 

Act” has the meaning specified in Section 10.18.

 

Additional Lender” means, as of any date of determination, any Person (other than an existing Lender) that qualifies as an Eligible Assignee and agrees to be a Lender under this Agreement in connection with any Incremental Increase.

 

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, and any branch (including Bank of America, N.A., acting through its Canada branch for Loans denominated in Canadian Dollars), office or Affiliate of it, or any successor administrative agent.

 



 

Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 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 from time to time by the Administrative Agent.

 

AECOM Capital” means AECOM Capital, Inc. and all existing or newly formed entities engaged in any similar line of business to AECOM Capital, Inc., including infrastructure public-private partnership, design-build-finance, real estate investment, development and related assets.

 

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.

 

Aggregate Commitments” means the Commitments of all the Lenders.

 

Aggregate Revolving Credit Commitments” means the Revolving Credit Commitments of all the Revolving Credit Lenders, subject to adjustment pursuant to the provisions of this Agreement (including Sections 2.06 and 2.16).

 

Alternative Currency” means each of Euro, Sterling, Yen, Canadian Dollars, Australian Dollars, New Zealand Dollars, HKD, Swiss Francs and each other currency (other than Dollars) that is approved in accordance with Section 1.06.

 

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 determined by the Administrative Agent 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 such Alternative Currency with Dollars.

 

Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate Revolving Credit Commitments and $300,000,000.  The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

Amendment No. 2 Effective Date” means December 22, 2015.

 

Amendment No. 3 Effective Date” means September 29, 2016.

 

Amendment No. 4 Effective Date” means March 31, 2017.

 

Amendment No. 5 Effective Date” means March 13, 2018.

 

Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or other applicable Laws related to anti-corruption and money laundering in Australia.

 

Applicable Percentage” means (a) in respect of the Term A US Facility, with respect to any Term A US Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A US Facility represented by (i) on or prior to the Amendment No. 5 Effective Date, such Term A US Lender’s Term A US Commitment plus the principal amount of such Term A US Lender’s Term A US Loans at such

 

2



 

time, subject to adjustment as provided in Section 2.18, and (ii) thereafter, the principal amount of such Term A US Lender’s Term A US Loans at such time, (b) in respect of the Term B Facility, with respect to any Term B Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B Facility represented by (i) on or prior to the Amendment No. 5 Effective Date, such Term B Lender’s Term B Commitment at such time, subject to adjustment as provided in Section 2.18, and (ii) thereafter, the principal amount of such Term B Lenders Term B Loans at such time, (c) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.18, (d) in respect of the Term A CAD Facility, with respect to any Term A CAD Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A CAD Facility represented by (i) on or prior to the Amendment No. 5 Effective Date, such Term A CAD Lender’s Term A CAD Commitment at such time, subject to adjustment as provided in Section 2.18, and (ii) thereafter, the principal amount of such Term A CAD Lender’s Term A CAD Loans at such time and (e) in respect of the Term A AUD Facility, with respect to any Term A AUD Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A AUD Facility represented by (i) on or prior to the Amendment No. 5 Effective Date, such Term A AUD Lender’s Term A AUD Commitment at such time, subject to adjustment as provided in Section 2.18, and (ii) thereafter, the principal amount of such Term A AUD Lender’s Term A AUD Loans at such time.  If the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

Applicable Rate” means (a) with respect to the Term B Facility, 0.75% per annum for Base Rate Loans and 1.75% per annum for Eurocurrency Rate Loans, (b) with respect to the Term A US Facility, 0.50% per annum for Base Rate Loans and 1.50% per annum for Eurocurrency Rate Loans, and (c) with respect to the Term A CAD Facility, the Term A AUD Facility, the Revolving Credit Facility (including the Financial Letter of Credit Fee and the Performance Letter of Credit Fee) and the Commitment Fees (i) from the Amendment No. 5 Effective Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(a) for the fiscal quarter ending June 30, 2018, 0.75% per annum for Base Rate Loans, 1.75% per annum for Eurocurrency Rate Loans and Financial Letter of Credit Fees, 1.05% for Performance Letter of Credit Fees and 0.25% per annum for the Commitment Fees, and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

3



 

Pricing
Level

 

Consolidated
Leverage Ratio

 

Eurocurrency
Rate and
Financial Letter
of Credit Fee

 

Base Rate

 

Performance
Letter of
Credit Fee

 

Commitment
Fees

 

1

 

> 4.25 to 1.00

 

2.00

%

1.00

%

1.20

%

0.30

%

2

 

< 4.25 to 1.00, but
> 3.25 to 1.00

 

1.75

%

0.75

%

1.05

%

0.25

%

3

 

< 3.25 to 1.00, but
> 2.50 to 1.00

 

1.50

%

0.50

%

0.90

%

0.20

%

4

 

< 2.50 to 1.00

 

1.25

%

0.25

%

0.75

%

0.15

%

 

With respect to the Term A CAD Facility, the Term A AUD Facility, the Revolving Credit Facility (including the Financial Letter of Credit Fee and the Performance Letter of Credit Fee) and the Commitment Fees, 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 delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Term A US Lenders, the Required Term A CAD Lenders, the Required Term A AUD Lenders and the Required Revolving Lenders, the applicable Pricing Level 1 shall apply in respect of the Term A CAD Facility, the Term A AUD Facility and the Revolving Credit Facility, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.  Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).

 

Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.

 

Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the 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.

 

Applicant Borrower” has the meaning specified in Section 2.15.

 

Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Revolving Credit Facility, (i) the L/C Issuers and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.

 

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.

 

4



 

Approved Jurisdiction” means, with respect to any Applicant Borrower, (a) any state or territory of the United States or (b) Canada or any province thereof, the United Kingdom, Ireland, Switzerland, the Netherlands, Australia or Luxembourg, except, in the case of any jurisdiction identified in clause (b), to the extent that the Administrative Agent notifies (which may be at the request of the relevant Revolving Credit Lenders) the Company that it is no longer lawful for one or more of the Revolving Credit Lenders to make or maintain loans to a proposed Applicant Borrower located in such jurisdiction or that no L/C Issuer is permitted to issue Letters of Credit for the account of Persons located in such jurisdiction.

 

Arrangers” means, collectively, Bank of America, N.A., an affiliate of MLPFS (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), JPMorgan Chase Bank, N.A., The Bank of Nova Scotia, BNP Paribas Securities Corp. and Credit Agricole Corporate and Investment Bank, in their respective capacities as joint lead arrangers and joint bookrunners.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

 

Associate” shall have the meaning provided in section 128F(9) of the Australian Tax Act.

 

Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized 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, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease.

 

Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended September 30, 2013 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.

 

Australia” shall mean the Commonwealth of Australia (and includes, where the context requires, any State or Territory of Australia).

 

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

 

Australian Dollar” and “AU$” mean the lawful currency of Australia.

 

Australian Tax Act” shall mean the Income Tax Assessment Act 1936 (Cth) of Australia, the Income Tax Assessment Act 1997 (Cth) of Australia, and the Taxation Administration Act 1953 (Cth) of Australia, as applicable.

 

Australian Withholding Tax” means any Taxes required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Australian Tax Act.

 

5



 

Availability Period” means, in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (a) the Maturity Date for the Revolving Credit Facility, (b) the date of termination of all of the Revolving Credit Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the applicable L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.

 

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

 

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

 

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

 

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1% (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurocurrency Rate (calculated in accordance with clause (vii) of the definition of Eurocurrency Rate) plus 1.00%.  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 such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

Base Rate Loan” means a Revolving Credit Loan, a Swing Line Loan, a Term A US Loan or a Term B Loan that bears interest based on the Base Rate.  All Base Rate Loans shall be denominated in Dollars.

 

BBSY” has the meaning ascribed thereto in the definition of “Eurocurrency Rate”.

 

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

 

BMO” means Bank of Montreal and its successors.

 

BNP Paribas” means BNP Paribas and its successors.

 

Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.

 

Borrower Materials” has the meaning specified in Section 6.02.

 

Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term A US Borrowing, a Term A CAD Borrowing, a Term A AUD Borrowing or a Term B Borrowing, as the context may require.

 

6



 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a)                                 if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day;

 

(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 Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;

 

(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

 

(d)                                 if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate 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.

 

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

 

Canadian Dollar” and “C$” mean the lawful currency of Canada.

 

Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset that, in conformity with GAAP, is required to be capitalized and reflected in the property, plant and equipment or similar fixed asset accounts in the consolidated balance sheet of such Person and its Subsidiaries (and excluding, for the avoidance of doubt, normal replacements and maintenance which are properly charged under GAAP to current operations).

 

Capitalized Leases” means all leases of (or other agreements conveying the right to use) real or personal property by a Person as lessee or guarantor which would, in conformity with GAAP, be required to be accounted for as capital leases on the balance sheet of that Person.

 

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 or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent, the applicable L/C Issuer or Swing Line Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the respective L/C Issuer or the Swing Line Lender (as applicable).  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

7



 

Cash Equivalents” means any of the following types of Investments, to the extent owned by the Company or any of its Restricted Subsidiaries:

 

(a)                                 readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof, or, in the case of a Foreign Subsidiary, readily marketable obligations issued or directly and fully guaranteed or insured by the government, governmental agency or applicable multinational intergovernmental organization of the country of such Foreign Subsidiary or backed by the full faith and credit of the government, governmental agency or applicable multinational intergovernmental organization of the country of such Foreign Subsidiary having maturities of not more than one year from the date of acquisition thereof;

 

(b)                                 readily marketable obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and having, at the time of acquisition, the highest rating obtainable from Moody’s or S&P;

 

(c)                                  demand deposits, time deposits, Eurodollar time deposits, repurchase agreements or reverse repurchase agreements with, or insured certificates of deposit or bankers’ acceptances of, or that are guaranteed by, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (d) of this definition and (iii) has combined capital and surplus of at least $500,000,000, in each case with maturities of not more than one year from the date of acquisition thereof;

 

(d)                                 commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-2” (or the then equivalent grade) by Moody’s or at least “A-2” (or the then equivalent grade) by S&P, in each case with maturities of not more than one year from the date of acquisition thereof;

 

(e)                                  corporate promissory notes or other obligations maturing not more than one year after the date of acquisition which at the time of such acquisition have, or are supported by, an unconditional guaranty from a corporation with similar obligations which have the highest rating obtainable from Moody’s or S&P;

 

(f)                                   Investments, classified in accordance with GAAP as current assets of the Company or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b), (c), (d) and (e) of this definition;

 

(g)                                  other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing; and

 

(h)                                 solely with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and 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 (any such bank being an “Approved Foreign Bank”) and maturing within 180 days of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank.

 

8



 

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

 

Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

 

CDOR” has the meaning ascribed thereto in the definition of “Eurocurrency Rate”.

 

CDOR Rate” has the meaning ascribed thereto in the definition of “Eurocurrency Rate”.

 

CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.

 

CFC Debt” means intercompany loans, Indebtedness or receivables owed or treated as owed by one or more Foreign Subsidiaries.

 

Change in Law” means the occurrence, after the date of 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, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or 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 authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change of Control” means an event or series of events by which 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 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), directly or indirectly, of 35% or more of the equity securities 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.

 

Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

 

Code” means the Internal Revenue Code of 1986.

 

Collateral” means all of the “Collateral” and “Mortgaged Property” or “Trust Property” or other similar term referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.  Notwithstanding anything in the Loan Documents to the contrary, the term “Collateral” shall not include any Excluded Assets.

 

9



 

Collateral and Guarantee Requirement” means, at any relevant time of determination on and after the date of consummation of the Acquisition, any or all of the following (as applicable):

 

(a)                                 each Significant Subsidiary shall have executed and delivered to the Administrative Agent a Guaranty, provided that in no event shall AECOM Capital or any of its Subsidiaries be required to be or become a Guarantor or a Loan Party;

 

(b)                                 each Loan Party shall have executed and delivered to the Administrative Agent (i) a Pledge and Security Agreement or other applicable Collateral Document with respect to (A) all or substantially all of its assets other than Excluded Assets and (B) the Equity Interests in its Subsidiaries, limited (1) in the case of pledges of Equity Interests in CFCs and Foreign Holding Companies, to 65% of such voting Equity Interests and 100% of such non-voting Equity Interests and (2) in the case of any Subsidiary that is disregarded as an entity from its owner under Treasury Regulations Section 301.7701-3 and substantially all the assets of which consist for U.S. federal income tax purposes of Equity Interests in a CFC or CFC Debt, to 65% of such Equity Interests, and (ii) if applicable, an Intellectual Property Security Agreement;

 

(c)                                  the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property (together with UCC fixture filings if requested by the Administrative Agent), (ii) a policy or policies of title insurance in the amount equal to the fair market value of such Mortgaged Property and fixtures, as determined by the Company in its reasonable discretion, issued by a nationally recognized title insurance company or a title company and/or title agent reasonably acceptable to the Administrative Agent (the “Title Company”) insuring the Lien of each such Mortgage as a first priority Lien (subject to Permitted Liens) on the Mortgaged Property described therein, free of any other Liens except Permitted Liens, together with such endorsements as the Administrative Agent may reasonably request, together with evidence reasonably satisfactory to the Administrative Agent of payment of all premiums of the Title Company and all other sums required in connection with the issuance of each title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgage in the appropriate real estate records (provided, however, that if recording or stamp taxes are computed based upon the amount secured by such Mortgage, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Mortgage shall expressly state that it only secures a sum certain that is equal to the fair market value of the Mortgaged Property as determined by the Company in its reasonable discretion), (iii) such affidavits, certificates, information (including financial data) and instruments of indemnification as shall be reasonably required to induce the Title Company to issue the title policies and endorsements contemplated above and which are reasonably requested by such Title Company, (iv) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating to such Mortgaged Property), (v) if any Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable Law, including Regulation H of the Board of Governors and the other Flood Insurance Laws and as required under Section 6.07(b), (vi) to the extent in the possession of any applicable Loan Party, an ALTA survey for each Mortgaged Property, together with an affidavit of no change, if applicable, in favor of the Title Company, and (vii) such legal opinions as the Administrative Agent may reasonably request with respect to any such Mortgage or Mortgaged Property, in each case, in form and substance reasonably satisfactory to the Administrative Agent; provided that, (x) the items listed in the foregoing clauses (iv) and (v) shall

 

10



 

be provided to the Lenders at least twenty (20) days prior to entering into any Mortgage and (y) no Mortgage shall be entered into until the Administrative Agent has received written confirmation from each Lender under the Revolving Credit Facility, Term A US Facility, Term A AUD Facility and Term A CAD Facility, as applicable, that it is satisfied with such items in clauses (iv) and (v);

 

(d)                                 to the extent required to be delivered pursuant to the terms of the applicable Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to perfect the Administrative Agent’s and the Secured Parties’ security interest in such Collateral;

 

(e)                                  all (i) certificates (including certificates representing Equity Interests and powers in blank with respect thereto, subject to clause (b) of this definition), agreements, documents and instruments, including UCC financing statements, required by the Collateral Documents and as reasonably requested by the Administrative Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording and (ii) Taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents shall have been paid;

 

(f)                                   in the case of any of the foregoing executed and delivered after the Closing Date, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received documents, Organization Documents, certificates, resolutions and opinions of the type referred to in Section 4.01(a)(iii), (iv) and (v) with respect to each such Person and its Guarantee and/or provision and perfection of Collateral; and

 

(g)                                  copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents;

 

provided that the Collateral shall not include, and the Collateral and Guarantee Requirement shall not require, any of the following: (i) any filings or other action in any jurisdiction outside of the United States or required by the Laws of any jurisdiction outside of the United States to create or perfect any security interest, including, without limitation, any intellectual property registered in any jurisdiction outside the United States (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction outside the United States); (ii) control agreements or other control or similar arrangements with respect to deposit accounts, securities accounts or other assets requiring perfection by control (but not, for the avoidance of doubt, control by possession, including of certificated Equity Interests); (iii) any bailee waivers, landlord waivers, estoppels or collateral access letters; (iv) any notices to be sent to account debtors or other contractual third parties (other than during the continuance of Event of Default); (v) pledges and security interests prohibited by applicable law, rule or regulation (to the extent such law, rule or regulation is effective under applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code)), other than proceeds and receivables thereof; (vi) Equity Interests in any person other than wholly-owned Subsidiaries to the extent not permitted by the terms of such Subsidiary’s organizational or joint venture documents; (vii) (A) more than 65% of the voting Equity Interests in any Subsidiary that is a CFC or Foreign Holding Company, and (B) more than 65% of the Equity Interests in any Subsidiary that is disregarded as an entity from its owner under Treasury Regulations Section 301.7701-3 and substantially all the assets of which consist for U.S. federal income

 

11



 

tax purposes of Equity Interests in a CFC or CFC Debt; (viii) assets to the extent a security interest in such assets would result in adverse tax consequences to the Company and its Restricted Subsidiaries (including as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) as reasonably determined by the Company and the Administrative Agent; (ix) any lease, license, contract or other agreement or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license, contract or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (other than the Loan Parties), after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code), other than proceeds and receivables thereof; (x) any of the Equity Interests of Foreign Subsidiaries that are held by CFCs or Foreign Holding Companies of the Company; (xi) any fee-owned real property with a fair market value of less than $10,000,000, as determined by the Company in its reasonable discretion, and all leasehold interests; (xii) those assets as to which the Administrative Agent and the Company reasonably determine that the costs of obtaining, perfecting or maintaining a security interest in such assets exceeds the fair market value thereof (which fair market value shall be determined by the Company in its reasonable judgment) or the practical benefit to the Lenders afforded thereby; (xiii) motor vehicles and other assets to the extent perfection must be obtained through notation on a certificate of title, letter of credit rights (other than to the extent such rights can be perfected by filing a UCC-1) and commercial tort claims other than Material Commercial Tort Claims; (xiv) any cash collateral provided to third parties (including sureties) in the ordinary course of business; (xv) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law; (xvi) any property and assets the pledge of which would violate applicable Law or any contract, or require any contractual third party consent or governmental consent, approval, license or authorization (but only to the extent, and for so long as, such requirement for consent, approval, license or authorization is not rendered ineffective by, or is otherwise unenforceable under, the Uniform Commercial Code or any other applicable law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code)); (xvii) so long as none of the properties of the Company and its Restricted Subsidiaries constitute “Principal Property” under any indenture with respect to the Existing Target Notes, real property (including land, improvements and/or buildings) constituting “Principal Property” under any such indenture or any other asset which would require granting of a lien in favor of the holders of the Existing Target Notes, but such limitation to apply only for so long as any of the Existing Target Notes remain outstanding; (xviii) assets subject to Liens securing permitted receivables financings or factoring arrangements; (xix) any CFC Debt; and (xx) certificated Equity Interests in pledged Foreign Subsidiaries need not be delivered for possession if the Administrative Agent and the Company reasonably determine that the cost of such delivery for possession exceeds the practical benefit to the Lenders afforded thereby (and any assets not required to be granted or pledged pursuant to this proviso shall be referred to as “Excluded Assets”).  The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Restricted Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date).  For the avoidance of doubt, during a Collateral Release Period, the Collateral and Guarantee Requirement shall be limited to the provisions with respect to the providing of Guaranties (and related action), and shall not require any action with respect to the granting or perfection of any assets or Collateral (provided the other provisions of this document relating to the provision of Cash Collateral shall continue to apply).

 

12



 

Collateral Documents” means, collectively, the Security and Pledge Agreement, the Intellectual Property Security Agreements, the Mortgages, each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Obligations.

 

Collateral Reinstatement Event” means, after a release of Collateral as provided for in Section 10.20(a), the occurrence of any of the following: (a) both (i) the corporate family rating of the Company and its Subsidiaries from Moody’s is reduced to Ba1 and (ii) the corporate rating of the Company and its Subsidiaries from S&P is reduced to BB+, (b) the corporate family rating of the Company and its Subsidiaries from Moody’s is reduced to Ba2 or below (regardless of the then applicable corporate rating of the Company and its Subsidiaries from S&P), (c) the corporate rating of the Company and its Subsidiaries from S&P is reduced to BB or below (regardless of the then applicable corporate family rating of the Company and its Subsidiaries from Moody’s), (d) none of the corporate ratings of the Company and its Subsidiaries by Moody’s or S&P nor another similar rating from another rating agency reasonably acceptable to the Administrative Agent is available or (e) the exercise of an Incremental Increase in the nature of a “term B loan facility”, unless the Lenders providing such Incremental Increase agree that such facility shall be unsecured; provided that for purposes of determining whether a Collateral Reinstatement Event shall have occurred, if, for any reason, only one rating agency shall maintain corporate or corporate family ratings of the Company and its Subsidiaries then the applicable rating provided by such rating agency (or its equivalent) shall apply for both rating agencies.

 

Collateral Release Event” means the satisfaction of each of the following conditions: (a) the corporate family rating of the Company and its Subsidiaries from Moody’s is Baa3 or better (with a stable outlook or better), (b) the corporate rating of the Company and its Subsidiaries from S&P is BBB- or better (with a stable outlook or better), (c) no Default or Event of Default exists, and (d) the Term B Facility (and any Incremental Term Loan in the nature of a “term loan B” facility) shall have been paid in full and terminated.

 

Collateral Release Period” means, each period commencing with the occurrence of a Collateral Release Event, and continuing until the Collateral Reinstatement Event immediately following such Collateral Release Event.

 

Commitment” means a Term A US Commitment, a Term A CAD Commitment, a Term A AUD Commitment, a Term B Commitment or a Revolving Credit Commitment (including a Letter of Credit Commitment), as the context may require.

 

Commitment Fee” means the Revolver Commitment Fee.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

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.

 

13



 

Consolidated EBITDAmeans, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:

 

(a)                                 increased (without duplication) by the following to the extent deducted (or, in the case of clause (xiii) below, not included) in calculating the Consolidated Net Income of such Person for such period:

 

(i)                                     provision for Federal, state, local and foreign taxes based on income or profits or capital (including, without limitation, state franchise, excise and similar taxes and foreign withholding taxes of such Person) paid or accrued during such period, including any penalties and interest relating to any tax examinations, and (without duplication) net of any tax credits applied during such period (including tax credits applicable to taxes paid in earlier periods); plus

 

(ii)                                  Consolidated Interest Charges; plus

 

(iii)                               depreciation and amortization expense; plus

 

(iv)                              any expenses or charges (other than depreciation or amortization expense) related to any equity offering, Investment, acquisition, Disposition or recapitalization permitted under the Loan Documents or the incurrence of Indebtedness permitted to be incurred under the Loan Documents (including a refinancing thereof) (whether or not successful), including (A) such fees, expenses or charges related to the Transactions and any other credit facilities and (B) any amendment or other modification of the Loan Documents and any other credit facilities; plus

 

(v)                                 the amount of any restructuring charge or reserve or integration cost, including any one-time costs incurred in connection with the Transactions and acquisitions or divestitures after the Closing Date, in an aggregate amount not to exceed $250,000,000, such amount to increase (with carryforward of all unused amounts) by the amount set forth below, beginning on October 1, 2015 and on each October 1st thereafter:

 

Increase Date:

 

Increase Amount:

 

 

 

October 1, 2015

 

$

175,000,000

 

 

 

October 1, 2016

 

$

50,000,000

 

 

 

October 1, 2017

 

$

25,000,000

 

 

 

October 1, 2018 and each October 1 thereafter

 

$

25,000,000

 

 

plus

 

(vi)                              other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income of such Person for such period, including any impairment charges or the impact of purchase accounting, (excluding (A) any such non-cash charge, writedown or item to the extent it represents an accrual or reserve for a cash expenditure for a future period and (B) any such non-cash charge related to project writedowns or operations) less other non-cash items of income increasing Consolidated Net Income (excluding any such non-cash item of income to the extent it represents a receipt of cash in any future period so long as such receipt of cash is not included in calculating Consolidated Net Income or Consolidated EBITDA in such later period); plus

 

(vii)                           all expenses and charges relating to non-controlling Equity Interests and equity income in non-wholly owned Restricted Subsidiaries; plus

 

14



 

(viii)                        any costs or expense incurred pursuant to (x) any management equity plan or stock option plan or (y) any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, in the case of this clause (y) to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interests of the Company (other than Disqualified Stock); plus

 

(ix)                              cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not otherwise added back in such period or any other period; plus

 

(x)                                 cash distributions of income received from non-consolidated Joint Ventures and other non-consolidated Minority Investment entities, attributable to the ownership of such Person in such entities; plus

 

(xi)                              cost savings, expense reductions, operating improvements, integration savings and synergies, in each case, projected by the Company in good faith to be realized as a result, and within 18 months, of the Transactions, so long as the aggregate amount thereof does not exceed $18,000,000; plus

 

(xii)                           solely for the Measurement Period ending March 31, 2017, the amount of $44,000,000 representing the anticipated gain related to the sale of interests in a joint venture of AECOM Capital expected to close in the fiscal quarter ending June 30, 2017;

 

(b)                                 decreased (without duplication) by the following to the extent included in calculating the Consolidated Net Income of such Person for such period:

 

(i)                                     non-cash gains other than (A) non-cash gains to the extent they represent the reversal of an accrual or cash reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and (B) non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period; plus

 

(ii)                                  earnings of non-consolidated Joint Ventures and other non-consolidated Minority Investment entities, attributable to the ownership of such Person in such entities;

 

provided, that for purposes of calculating Consolidated EBITDA for any measurement period set forth below, Consolidated EBITDA for any period set forth below included in the four-fiscal quarter period ending on such date shall be deemed to equal the amount set forth below for such period:

 

Period:

 

Consolidated EBITDA

 

Fiscal quarter ending September 30, 2013

 

$

383,528,000

 

Fiscal quarter ending December 31, 2013

 

$

289,700,000

 

Fiscal quarter ending March 31, 2014

 

$

227,400,000

 

Fiscal quarter ending June 30, 2014

 

$

316,400,000

 

 

15



 

provided, further, that for purposes of calculating Consolidated EBITDA for any fiscal quarter in which the Closing Date occurs and any prior fiscal quarter for which an amount is not specified above, Consolidated EBITDA shall be determined based on the combined pro forma financial results of the Company and its Subsidiaries and of the Target and its Subsidiaries (and include actual results for the period of time following the Closing Date) in a manner reasonably satisfactory to the Company and the Administrative Agent.

 

Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP and without duplication, all (a) Indebtedness for borrowed money and all obligations evidenced by notes, bonds, debentures, loan agreements or similar instruments, (b) Indebtedness in respect of the deferred purchase price of property or services (which Indebtedness excludes, for the avoidance of doubt, trade accounts payable or similar obligations to a trade creditor in the ordinary course of business and any contingent earn-out obligation or other contingent obligation related to an acquisition or an Investment permitted hereunder), (c) Indebtedness arising under letters of credit (excluding Performance Letters of Credit), (d) Guarantees of the foregoing types of Indebtedness and (e) all Indebtedness of the types referred to in clauses (a) through (d) above of any partnership in which the Company or a Restricted Subsidiary is a general partner; provided that “Consolidated Funded Indebtedness” shall exclude (i) Performance Contingent Obligations, (ii) any payment obligations with respect to the Preferred Stock of the Company or any Subsidiary, and (iii) all obligations under any Swap Contract; provided further that as of the last day of the fiscal quarter ending March 31, 2017, Consolidated Funded Indebtedness shall be calculated by giving pro forma effect to the planned repayment of Indebtedness with the net proceeds from the sale of interests in a joint venture of AECOM Capital expected to close in the fiscal quarter ending June 30, 2017, as reasonably determined by the Company, in an amount not to exceed $71,000,000.

 

Consolidated Interest Charges” means, for any Person for any period, total interest expense of such Person and its Subsidiaries, on a consolidated basis and without duplication, accrued in that period as shown in the profit and loss statement for that period, determined in accordance with GAAP, including Commitment Fees owed with respect to the unused portion of the Facilities, other fees under the Loan Documents, charges in respect of Financial Letters of Credit and the portion of any obligations under any Capitalized Lease allocable to interest expense, but excluding (i) amortization, expensing or write-off of financing costs or debt discount or expense, (ii) amortization, expensing or write-off of capitalized private equity transaction costs, to the extent such costs are treated as interest under GAAP, and (iii) the portion of the upfront costs and expenses for Swap Contracts (to the extent included in interest expense) fairly allocated to such Swap Contracts as expenses for such period, less interest income on Swap Contracts for that period and Swap Contracts payments received.

 

Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case, of or by the Company and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period.

 

Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA of the Company and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period.

 

Consolidated Net Income” shall mean, for any Person for any period of measurement, the consolidated net income (or net loss) of such Person for such period, determined on a consolidated basis in accordance with GAAP; provided that in computing such amount for the Company and its Restricted Subsidiaries, there shall be excluded extraordinary gains and extraordinary losses of such Person for such period.

 

16



 

Consolidated Net Worth” means, as of any date of determination, the consolidated stockholders’ equity of the Company and its Subsidiaries determined in accordance with GAAP, plus redeemable common stock and common stock units shown on the Company’s consolidated balance sheet, plus an amount equal to the principal amount or liquidation preference of issued and outstanding Preferred Stock of the Company and its Subsidiaries.

 

Consolidated Priority Indebtedness” means all Priority Indebtedness of the Company and its Restricted Subsidiaries (but not Tax Arrangement Priority Indebtedness) determined on a consolidated basis eliminating intercompany items.

 

Consolidated Senior Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Senior Secured Indebtedness as of such date to (b) Consolidated EBITDA of the Company and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period.

 

Consolidated Senior Secured Indebtedness” means, at any time, without duplication, the aggregate principal amount of all Consolidated Funded Indebtedness of the Company and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP that, as of such date, is secured by a Lien on any asset of the Company or any Restricted Subsidiary.

 

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” 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.

 

Corporate Restructuring”  means certain Dispositions, Investments, Guarantees, other asset transfers and related transactions, substantially as described and disclosed to the Administrative Agent and the Lenders prior to the Amendment No. 4 Effective Date, pursuant to which (a) the ownership of certain Foreign Subsidiaries is transferred directly or indirectly to URS Global Holdings UK Limited, a United Kingdom corporation (“URS UK”) or AECOM Global Holdings Ireland Ltd (Ireland), (c) the Equity Interests in Flint USA are distributed from URS UK to URS Global Holdings, and (d) certain other corporate reorganization steps, including Investments, Guarantees, the formation of new Subsidiaries and Dispositions, are taken to effectuate the Corporate Restructuring, so long as in connection therewith (i) no Loan Party as of the Amendment No. 4 Effective Date shall cease to be a Loan Party solely as a result of the Corporate Restructuring, (ii) no Default or Event of Default is in existence and continuing at the time of consummation of any transaction intended to constitute a part of the Corporate Restructuring and (iii) such Corporate Restructuring transactions will not include the transfer of any material assets of any Loan Party to any non-Loan Party, except for (x) Equity Interests in Non-Loan Parties (so long as the Loan Parties continue to own such transferred Equity Interests directly or indirectly through one or more Subsidiaries) and (y) intercompany Indebtedness as disclosed to the Administrative Agent and the Lenders prior to the Amendment No. 4 Effective Date to be so transferred as part of the Corporate Restructuring.

 

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

 

Cumulative Available Amount” means, as of any date of determination, the sum (without duplication) of:

 

(a)                                 $400,000,000, plus

 

17



 

(b)                                 an amount, not less than zero, equal to 50% of Consolidated Net Income for the period (taken as one accounting period) from (and including) the fiscal quarter ended December 31, 2017 to the end of the fiscal quarter most recently ended in respect of which a Compliance Certificate has been delivered as required hereunder; plus

 

(c)                                  the aggregate proceeds (including the aggregate fair market value of any assets or property) received by the Company from the issue or sale of its Equity Interests (other than Disqualified Stock) subsequent to the Amendment No. 5 Effective Date (other than an issuance or sale to (x) a Subsidiary of the Company or (y) an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries to the extent such sale to an employee stock ownership plan or other trust is financed by loans from or Guaranteed by the Company or any Subsidiary, unless such loans have been repaid with cash on or prior to the date of determination); plus

 

(d)                                 the amount by which Indebtedness of the Company or its Subsidiaries issued after the Amendment No. 5 Effective Date is reduced on the Company’s consolidated balance sheet upon the conversion or exchange of such Indebtedness for Equity Interests (other than Disqualified Stock) of the Company (less the amount of any cash or the fair market value of other property distributed by the Company or any Subsidiary upon such conversion or exchange).

 

Customary Permitted Liens” means (a) Liens (other than Environmental Liens and any Lien imposed under ERISA) for Taxes, assessments or charges of any Governmental Authority or claims not yet due or (or, if failure to pay prior to delinquency but after the due date does not result in additional amounts being due, which are not yet delinquent) or the payment of which is not, at such time, required by Section 6.04, (b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, customs and revenue authorities and other Liens (other than any Lien imposed under ERISA) imposed by law and created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with the provisions of GAAP, (c) Liens (other than any Lien imposed under ERISA) incurred or deposits made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds and Liens securing obligations under indemnity agreements for surety bonds) or other Liens in connection with workers’ compensation, unemployment insurance and other types of social security benefits, (d) Liens consisting of any right of offset, or any statutory or consensual banker’s lien, on bank deposits or securities accounts maintained in the ordinary course of business so long as such bank deposits or securities accounts are not established or maintained for the purpose of providing such right of offset or banker’s lien, (e) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variations and other restrictions, charges or encumbrances (whether or not recorded), which do not interfere materially and adversely with the ordinary conduct of the business of the Company and its Restricted Subsidiaries taken as a whole, (f) building restrictions, zoning laws, entitlements, conservation and environmental restrictions and other similar statutes, law, rules, regulations, ordinances and restrictions, now or at any time hereafter adopted by any Governmental Authority having jurisdiction, (g) Liens in connection with sales of receivables in connection with energy service company projects, (h) licenses, sublicenses, leases or subleases granted to third parties and not interfering in any material respect with the ordinary conduct of the business of the Company and the Restricted Subsidiaries, taken as a whole, (i) any (A) interest or title of a lessor or sublessor under any lease not prohibited by this Agreement, (B) Lien or restriction that the interest or title of such lessor or sublessor may be subject to, or (C) subordination of the interest of the lessee or sublessee under such lease to any Lien or restriction referred to in the preceding clause (B), so long as the holder of such Lien or restriction agrees to recognize the rights of such lessee or sublessee under such lease, (j) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods, (k) Liens in favor of

 

18



 

United States or Canadian Governmental Authorities on deposit accounts in connection with auctions conducted on behalf of such Governmental Authorities in the ordinary course of business; provided that such Liens apply only to the amounts actually obtained from auctions conducted on behalf of such Governmental Authorities, (l) the reservations, limitations, provisos and conditions expressed in any original grants from the Crown in right of Canada of real or immoveable property, which do not materially impair the use of the affected land for the purpose used or intended to be used by that Person and (m) any security interest for the purposes of Section 12(3) of the PPSA that does not secure payment or performance of an obligation.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Insolvency Act 1986 of England and Wales (as amended by the Enterprise Act 2002), 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.

 

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 (a) when used with respect to Base Rate Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; (b) when used with respect to Eurocurrency Rate Loans, an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Eurocurrency Rate Loan plus 2% per annum; (c) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum; and (d) when used with respect to any other Obligations, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum.

 

Defaulting Lender” means, subject to Section 2.18(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two 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, the 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 Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the applicable L/C Issuer or the 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 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 in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a

 

19



 

Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest 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 2.18(b)) 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, the L/C Issuers, the Swing Line Lender and each other Lender promptly following such determination.

 

Designated Borrower” has the meaning specified in the introductory paragraph hereto and, for the avoidance of doubt, includes the Australian Borrower and the Canadian Borrower.

 

Designated Borrower Sublimit” means an amount equal to the lesser of the Aggregate Revolving Credit Commitments and $500,000,000.  The Designated Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

Designated Borrower Notice” has the meaning specified in Section 2.15.

 

Designated Borrower Request and Assumption Agreement” has the meaning specified in Section 2.15.

 

Disclosed Litigation” means litigation disclosed in the Forms 10-K and 10-Q filed by the Company or the Target with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, prior to the Closing Date.

 

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

Disqualified Stock” means, with respect to any Person, any Equity Interest that by its terms, or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable, or upon the happening of any event:

 

(a)                                 matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;

 

(b)                                 is convertible or exchangeable for Indebtedness or Disqualified Stock, excluding Equity Interests convertible or exchangeable solely at the option of the Company or a Restricted Subsidiary, provided that any such conversion or exchange shall be deemed an incurrence of Indebtedness or Disqualified Stock, as applicable; or

 

(c)                                  is redeemable at the option of the holder thereof, in whole or in part;

 

20



 

in the case of each of clauses (a), (b) and (c), on or prior to the date that is one year after the latest Maturity Date then in effect (as of the date of the issuance, grant, sale, distribution or other provision of such Equity Interests to holders thereof); provided that any Equity Interest that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Equity Interest upon the occurrence of an “asset sale” or “change of control” occurring prior to the date that is one year after the latest Maturity Date (as of the date of the issuance, grant, sale, distribution or other provision of such Equity Interests to holders thereof) shall not constitute Disqualified Stock if the “asset sale” or “change of control” provisions applicable to such Equity Interests are not more favorable to the holders of such Equity Interests than the provisions of Section 7.05 or of Section 8.01(k) to the Lenders.

 

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

 

Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent 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.

 

Domestic Borrower” means the Company and each Designated Borrower that is a Domestic Subsidiary.

 

Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

 

ECF Prepayment Percentage” means, for any relevant fiscal year of the Company, commencing with the fiscal year ending September 30, 2018, (a) 50% if the Consolidated Leverage Ratio as of the last day of such fiscal year is greater than or equal to 3.0 to 1.0, (b) 25% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 3.0 to 1.0 but greater than or equal to 2.75 to 1.00, and (c) 0% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 2.75 to 1.0.

 

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

 

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

 

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

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (iv), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

 

Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna.

 

21



 

Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to exposure to Hazardous Materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

 

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) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Environmental Lien” means a Lien in favor of any Governmental Authority for (1) any liability under any Environmental Laws, or (2) damages arising from or costs incurred by such Governmental Authority in response to a Release or threatened Release of Hazardous Materials.

 

Environmental Permit” means any permit, approval, identification number, license or other authorization from a governmental agency required under any Environmental Law.

 

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

 

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

 

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

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations 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 or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the initiation 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)  notification of a determination that any Pension Plan or Multiemployer Plan is considered an at risk plan or a plan in endangered or critical status within the meaning of Section 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (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; or (i) a failure by the Company or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Company or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

 

22



 

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

 

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

 

Eurocurrency Rate” means:

 

With respect to any Credit Extension:

 

(i)            denominated in a LIBOR Quoted Currency, the LIBOR Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

 

(ii)           denominated in Canadian dollars, the rate per annum equal to the Canadian Dealer Offered Rate (“CDOR”), 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) (in such case, the “CDOR Rate”) 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 Australian Bank Bill Swap Reference Bid Rate administered by ASX Benchmark Limited (or any other person which takes over administration of that rate) (“BBSY”) 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. (Melbourne, Australia time) on the Rate Determination Date with a term equivalent to such Interest Period;

 

(iv)          denominated in New Zealand Dollars, the rate per annum equal to the Bank Bill 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 10:45 a.m. (Auckland, New Zealand time) on the Rate Determination Date with a term equivalent to such Interest Period;

 

(v)           denominated in Hong Kong Dollars, the rate per annum equal to the Hong Kong Interbank Offer 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 11:00 a.m. (Hong Kong time) on the Rate Determination Date with a term equivalent to such Interest Period;

 

(vi)          with respect to a 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 Lenders pursuant to Section 1.06(a); and

 

23



 

(vii)         for any rate 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 Business Days prior to such date for U.S. Dollar deposits with a term of one 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.

 

Notwithstanding the foregoing, in no event shall the Eurocurrency Rate (including as used in the calculation of the Base Rate) be less than 0%.

 

Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on any of clauses (i) through (vi) 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.

 

Event of Default” has the meaning specified in Section 8.01.

 

Excess Cash Flow” means, for any fiscal year of the Company, the excess (if any) of (a) Consolidated EBITDA of the Company and its Restricted Subsidiaries for such fiscal year minus (b) the sum (for such fiscal year, without duplication) of (i) Consolidated Interest Charges actually paid in cash by the Company or any of its Restricted Subsidiaries, (ii) the aggregate amount of scheduled or (other than in respect of Loans) voluntary principal payments or repayments of Indebtedness made by the Company or any of its Restricted Subsidiaries during such fiscal year, but only to the extent that such payments or repayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Indebtedness, (iii) Capital Expenditures, Permitted Acquisitions and similar Investments (including Investments in Joint Ventures and Minority Investments, but excluding Investments in cash and Cash Equivalents) actually made in cash by the Company and its Restricted Subsidiaries during such fiscal year, excluding (A) all Capital Expenditures, Permitted Acquisitions and similar Investments to the extent funded with the proceeds of Indebtedness (other than extensions of credit under Revolving Credit Facility) and (B) Investments made utilizing the Cumulative Available Amount; (iv) all taxes actually paid in cash by the Company and its Restricted Subsidiaries, (v) all other items added to Consolidated Net Income in determining Consolidated EBITDA pursuant to clause (a)(iv) or clause (a)(v) of the definition thereof, to the extent paid in cash during such fiscal year, (vi) payments made in cash on earnout obligations by the Company and its Restricted Subsidiaries during such fiscal year, (vii) the difference (whether positive or negative) of the amount of Working Capital at the end of such fiscal year over the amount thereto at the end of the previous fiscal year and (viii) all other non-cash items increasing Consolidated EBITDA for such fiscal year.

 

Excluded Assets” has the meaning given thereto in the proviso to the definition of Collateral and Guarantee Requirement.

 

Excluded Subsidiary” means (a) any Foreign Holding Company, (b) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary, (c) any Foreign Subsidiary, (d) any Subsidiary that is prohibited by applicable Law or contract (with respect to any such contractual restriction, only to the extent existing on the Closing Date or the date on which the applicable Person becomes a direct or indirect Subsidiary of the Company (and not created in contemplation of such acquisition)) from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been

 

24



 

received), (e) any bankruptcy remote special purpose receivables entity or captive insurance company designated by the Company and permitted hereunder, (f) in the case of any obligation under any hedging arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity Exchange Act, any Subsidiary of the Company that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act, and (g)  Flint USA and its Subsidiaries.

 

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under 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 such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such 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, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to Recipient or required to be withheld or deducted from 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 (and, with respect to any payment made by or on behalf of the Canadian Borrower or the Australian Borrower, any other Canadian or Australian withholding Taxes, as applicable) 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) except in respect of any payment made by or on behalf of the Australian Borrower, such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) 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), (d) any U.S. federal withholding Taxes imposed pursuant to FATCA, (e) in the case of a Lender, any withholding Tax that (i) is Australian Withholding Tax in respect of interest paid to an Offshore Associate of the relevant Loan Party, (ii) would not have arisen but for the failure of a representation made by an Arranger or Lender pursuant to Section 3.01(h)(i) or 3.01(h)(iii) to be accurate or true, (iii) is Australian Withholding Tax imposed as a result of there ceasing to be at least two Lenders, or (iv) arises under Subdivision 12-E of Schedule 1 to the Taxation Administration Act 1953 (Cth) as a result of the relevant Lender failing to quote an Australian tax file number or an Australian business number, or failing to provide details of an exemption from the requirement to do so and (f) a deduction which arises because the Commissioner of Taxation of Australia has given a notice under Section 260-5 of Schedule 1 of the Taxation Administration Act 1953 (Cth) of Australia or Section 255 of the Australian Tax Act requiring the Loan Party to deduct from any payment to be made under the Loan Documents.

 

25



 

Existing AECOM Global II Loan”  means the intercompany loan existing as of the Amendment No. 2 Effective Date of $555 million in original principal amount from AECOM Global II, LLC, a Delaware limited liability company, as lender, to URS Global Holdings, as borrower.

 

Existing Company Notes” means (i) the 5.43% Senior Notes, Series A, of the Company due July 7, 2020 issued pursuant to the Note Purchase Agreement, dated as of June 28, 2010 and (ii) the 1.00% Senior Discount Notes, Series B, due July 7, 2022 issued pursuant to the Note Purchase Agreement, dated as of June 28, 2010.

 

Existing Credit Agreements” means the Existing Revolving Credit Agreement and the Existing TLA Credit Agreement.

 

Existing Letters of Credit” means, collectively, those Letters of Credit set forth on Schedule 1.01(c).  Existing Letters of Credit shall be deemed, as of the Closing Date, to be outstanding under the Revolving Credit Facility.

 

Existing Revolving Credit Agreement” means that certain Fourth Amended and Restated Credit Agreement dated as of January 29, 2014 among the Company, certain Subsidiaries of the Company party thereto, Bank of America, N.A., as administrative agent and the lenders from time to time party thereto.

 

Existing Target Credit Agreement” means that certain Credit Agreement dated as of October 19, 2011 among the Target, Wells Fargo Bank, National Association, as administrative agent and the lenders from time to time party thereto.

 

Existing Target Notes” means (a) the existing senior unsecured 3.850% notes due 2017 of the Target and URS Fox US LP, a Delaware limited partnership and subsidiary of the Target (collectively, the “Issuers”), issued pursuant to that certain Indenture dated as of March 15, 2012 and that First Supplemental Indenture dated as of March 15, 2012 and (b) the existing senior unsecured 5.000% notes due 2022 of the Issuers issued pursuant to that certain Indenture dated as of March 15, 2012 and that certain Second Supplemental Indenture dated as of March 15, 2012.

 

Existing TLA Credit Agreement” means that certain Second Amended and Restated Credit Agreement dated as of June 7, 2013 among the Company, Bank of America, N.A., as administrative agent and the lenders from time to time party thereto.

 

Facility” means the Term A US Facility, the Term A CAD Facility, the Term A AUD Facility, the Term B Facility or the Revolving Credit Facility, as the context may require.

 

Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than (i) contingent indemnification obligations that are not yet due and (ii) obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Performance Letters of Credit (other than any such obligations for which notice has been received by the Administrative Agent that either (x) amounts are currently due and payable under such Secured Cash Management Agreement or Secured Hedge Agreement, or unreimbursed drawings are outstanding under Secured Performance Letters of Credit, as applicable, or (y) no arrangements reasonably satisfactory to the applicable Cash Management Bank, Hedge Bank or PLOC Bank have been made)), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent (to the extent the Administrative Agent is a party to such arrangements) and the applicable L/C Issuers shall have been made).

 

26



 

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

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.  Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Fee Letters” means each of (a) the letter agreement, dated July 11, 2014, among the Company, the Administrative Agent and MLPFS and (b) the letter agreement dated as of August 2, 2014 by and among the Company, the Administrative Agent, MUFG Union Bank, N.A., the Bank of Nova Scotia, BNP Paribas, JPMorgan Chase Bank, N.A., BBVA Compass, Wells Fargo Bank, National Association, Sumitomo Mitsui Banking Corporation, Crédit Agricole Corporate and Investment Bank, Morgan Stanley Senior Funding, Inc., HSBC Bank USA, National Association and the Arrangers.

 

Fifth Amendment Existing Letters of Credit” means, collectively, those Letters of Credit set forth on Schedule 1.01(d).

 

Financial Covenant Event of Default” has the meaning specified in Section 8.01(b).

 

Financial Letter of Credit” means a standby Letter of Credit supporting obligations owing to third parties.

 

Financial Letter of Credit Fee” has the meaning specified in Section 2.03(i).

 

Financial Letter of Credit Sublimit” means an amount equal to $300,000,000.  The Financial Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

Flint USA” means Flint USA Inc., a Colorado corporation (or any successor thereto as a result of a change of legal entity form, reincorporation or similar non-substantive transaction).

 

Flood Insurance Laws” has the meaning specified in Section 6.07(b).

 

Foreign Holding Company” means any Subsidiary all or substantially all of the assets of which are comprised of Equity Interests in one or more Foreign Subsidiaries or CFC Debt.

 

27



 

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 organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.

 

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 that is a Revolving Credit Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders in accordance with the terms hereof.

 

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

 

Funding Indemnity Letter” means a funding indemnity letter, substantially in the form of Exhibit G.

 

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, but subject in all respects to the provisions of Section 1.03.

 

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, 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).

 

GST” means any good and services or similar tax, together with any related interest, penalties, fines or other charge.

 

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

 

28



 

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 (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be as set forth in Section 1.10.  The term “Guarantee” as a verb has a corresponding meaning.

 

Guarantors” means, collectively, (a) each Significant Subsidiary of the Company (other than Excluded Subsidiaries), (b) any other Person that is from time to time party to the Guaranty or any other agreement pursuant to which it guarantees the Obligations or any portion thereof and (c) the Company with respect to (i) Obligations owing by any Subsidiary of the Company under any Secured Hedge Agreement, Secured Cash Management Agreement or Secured Performance Letter of Credit, (ii) the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations and (iii) Obligations owing by any Borrower other than the Company.  Notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary shall constitute a Guarantor and in no event shall AECOM Capital or any of its Subsidiaries be required to be or become Guarantors.

 

Guaranty” means that certain Guaranty Agreement dated as of the Closing Date, by the Borrowers and the Guarantors in favor of the Administrative Agent and the Secured Parties, and including as supplemented or joined from time to time by the execution and delivery of supplements and joinders as provided therein or as otherwise reasonably acceptable to the Administrative Agent, and any other document pursuant to which any Person Guarantees any portion of the Obligations.

 

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

 

Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.

 

Honor Date” has the meaning assigned to such term in Section 2.03(c).

 

Impacted Loans” has the meaning assigned to such term in Section 3.03.

 

Increase Effective Date” has the meaning assigned to such term in Section 2.16(a).

 

Incremental Increase” has the meaning specified in Section 2.16(a).

 

Incremental Term A US Loans” has the meaning assigned to such term in Section 2.16(a).

 

Incremental Term B Loans” has the meaning assigned to such term in Section 2.16(a).

 

Incremental Term Loans” has the meaning assigned to such term in Section 2.16(a).

 

29



 

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 of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)           the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments (other than Performance Contingent Obligations and any Guarantees thereof and contingent obligations under or relating to bank guaranties or surety bonds);

 

(c)           net obligations of such Person under any Swap Contract if and to the extent such obligations would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;

 

(d)           all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable or similar obligations to a trade creditor in the ordinary course of business and other than any contingent earn-out obligation or other contingent obligation related to a Permitted Acquisition or an Investment permitted hereunder);

 

(e)           Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of Indebtedness of such Person shall be the lesser of (i) the fair market value of such asset at such date of determination and (ii) the amount of such Indebtedness of such other Person;

 

(f)            all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person;

 

(g)           the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any accrued dividends); and

 

(h)           all Guarantees of such Person in respect of any of the foregoing Indebtedness.

 

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner. 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. The amount of any Guarantee of Indebtedness shall be determined in accordance with the definition of ‘‘Guarantee.’’ Notwithstanding the foregoing, Indebtedness of the Company and its Restricted Subsidiaries shall not include short-term intercompany payables between or among two or more of the Company and its Restricted Subsidiaries arising from cash management transactions.

 

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.

 

Indemnitees” has the meaning specified in Section 10.04(b).

 

Information” has the meaning specified in Section 10.07.

 

Intellectual Property Security Agreement” has the meaning specified in the Security and Pledge Agreement.

 

30



 

Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition).

 

Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the Company in its Loan Notice, or such other period that is twelve months or less requested by the Company and consented to by all the Appropriate Lenders; provided that:

 

(i)                                     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, in the case of a Eurocurrency Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(ii)                                  any Interest Period pertaining to a Eurocurrency Rate Loan 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

 

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

 

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person by means of any of (a) the purchase or other acquisition of Equity Interests 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 interest in, another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment not consisting of a Guarantee at any time outstanding shall be (i) the amount actually invested (whether in cash, Cash Equivalents or in kind), without adjustment for subsequent increases or decreases in the value of such Investment, minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital or repayment of principal received in respect of such Investment that, in each case, is received in cash or Cash Equivalents (or, in the event of an in-kind Investment, in like property).  For purposes of covenant compliance, the amount of any Investment consisting of a Guarantee or other contingent liability at any time outstanding shall be determined in accordance with Section 1.10.  Without limiting the foregoing, the outstanding amount of any Guarantee or other contingent liability shall be subject to appropriate adjustments for any reduction of such Guarantee or other contingent liability, and the outstanding amount of any Guarantee or other contingent liability that has been terminated shall be zero.

 

IRS” means the United States Internal Revenue Service.

 

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

 

31



 

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 other Permitted L/C Party) or in favor of such L/C Issuer and relating to such Letter of Credit.

 

Joint Venture” means a joint venture, partnership or similar arrangement formed for the purpose of performing a single project or series of related projects, whether in corporate, partnership or other legal form; provided that, in no event shall a Subsidiary be considered a “Joint Venture.”

 

Laws” means, collectively, all international, foreign, Federal, state, provincial 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 each Revolving Credit Lender’s funding of its participation in any applicable L/C Borrowing in accordance with its Applicable Revolving Credit Percentage.  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, to the extent applicable, refinanced as a Revolving Credit Borrowing.  All L/C Borrowings shall be denominated in Dollars.

 

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

 

L/C Issuer” means (i) Bank of America, (ii) JPMorgan Chase Bank, N.A., (iii) The Bank Of Nova Scotia, (iv) BNP Paribas, (v) Credit Agricole Corporate and Investment Bank and (vi) any other Revolving Credit Lender that becomes an L/C Issuer in accordance with Section 2.03(m) hereof (in each case under (i) through (vi), for so long as such Person shall have a Letter of Credit Commitment), (vii) solely with respect to any Existing Letter of Credit issued by a Revolving Credit Lender other than the foregoing (i) through (vi), such Revolving Credit Lender (only for such Existing Letters of Credit) and (viii) solely with respect to any Fifth Amendment Existing Letter of Credit, the Lender that issued each such Fifth Amendment Existing Letter of Credit (only for such Fifth Amendment Existing Letters of Credit), each in its respective capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder, but excluding any Lender that resigns or is removed as an L/C Issuer pursuant to the terms hereof (except to the extent such Person has continuing rights and/or obligations with respect to Letters of Credit after such resignation or removal).  References to the L/C Issuer herein shall, as the context may indicate (including with respect to any particular Letter of Credit, L/C Credit Extension, L/C Borrowing or L/C Obligations), mean the applicable L/C Issuer, each L/C Issuer, any L/C Issuer, or all L/C Issuers.  For the avoidance of doubt, as of the Amendment No. 5 Effective Date no issuer of a Fifth Amendment Existing Letter of Credit shall be an L/C Issuer other than for purposes of Fifth Amendment Existing Letters of Credit (unless such Lender is later appointed as an L/C Issuer pursuant to Section 2.03(m) hereof after the Amendment No. 5 Effective Date).

 

L/C Obligations” means, as at any date of determination with respect to the applicable Facility, the aggregate amount available to be drawn under all outstanding Letters of Credit under such Facility plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings under such Facility.  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 1.09.  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.

 

32



 

Lender” has the meaning specified in the introductory paragraph hereto and, unless the context requires otherwise, includes the Swing Line Lender.

 

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.  Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

 

Letter of Credit” means (a) any Financial Letter of Credit or Performance Letter of Credit issued under the Revolving Credit Facility, (b) any Existing Letter of Credit or (c) any Fifth Amendment Existing 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 an L/C Issuer.

 

Letter of Credit Commitment” means, as to any L/C Issuer at any time, an amount separately agreed from time to time with the Company to be the maximum face amount of Letters of Credit (specified, as applicable, between Financial Letters of Credit and Performance Letters of Credit) to be issued by such L/C Issuer.

 

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

 

Letter of Credit Fee” has the meaning specified in Section 2.03(i).

 

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

 

LIBOR Quoted Currency” means each of the following currencies: Dollars; Euro; Sterling; Yen; and Swiss Francs; in each case as long as there is a published LIBOR rate with respect thereto.

 

LIBOR Screen Rate” means the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is reasonably approved by the Administrative Agent, as published on the applicable Bloomberg screen page or other applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be reasonably designated by the Administrative Agent from time to time).

 

LIBOR Successor Rate” has the meaning specified in Section 3.03(b).

 

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

 

33



 

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance (including any easement, right-of-way or other encumbrance on title to real property), lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).

 

Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.

 

Loan Documents” means, collectively, this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, the Guaranty, each Collateral Document, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17 of this Agreement and each Fee Letter.

 

Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system, as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.

 

Loan Parties” means, collectively, the Company, the other Borrowers, each Guarantor and each Designated Borrower.

 

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

 

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Company and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under the Loan Documents, or of the ability of the Loan Parties to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

 

Material Commercial Tort Claim” means any commercial tort claim with respect to which a Loan Party is the plaintiff or a beneficiary and that makes a claim for damages, or other claim for judgment, in an amount greater than or equal to $10,000,000.

 

Material Guarantor” means any Guarantor that is itself a Significant Subsidiary pursuant to clause (a) or (b) of the definition thereof (without giving effect to the aggregation in the proviso to such definition).

 

Maturity Date” means (a) with respect to the Revolving Credit Facility, March 13, 2023, (b) with respect to the Term A US Facility, March 13, 2021, (c) with respect to the Term A CAD Facility, March 13, 2023, (d) with respect to the Term A AUD Facility, March 13, 2023 and (e) with respect to the Term B Facility, March 13, 2025; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

34



 

Maximum Increase Amount” means, on and after the Amendment No. 5 Effective Date, the sum of (a) $500,000,000 plus (b) any additional amount so long as, after giving effect to such proposed Incremental Increase (and with respect to any Revolving Credit Increase, measured assuming any such Revolving Credit Increase is fully drawn), any repayment of other Indebtedness in connection therewith and any other acquisition, Disposition, incurrence of Indebtedness (including any substantially simultaneous Incremental Increases), retirement of Indebtedness and all appropriate pro forma adjustment events (including events occurring subsequent to the end of the applicable test period and on or prior to the date of such incurrence), the Consolidated Senior Secured Leverage Ratio is not greater than 2.75 to 1.00.

 

Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Company.

 

Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of the applicable L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer in their sole discretion.

 

Minority Investment” means an Investment by the Company or any Restricted Subsidiary in the Equity Interests of another Person (other than the Company or any Restricted Subsidiary) whose primary business at such time is the same as that of the Company that results in the direct ownership by the Company or a Restricted Subsidiary of less than 50% (or in the case of the Investment described in Schedule 1.01(a), of up to 50%) of the outstanding Equity Interests of such other Person, irrespective of whether the board of directors (or other governing body) of such Person has approved such Investment; provided that a “Minority Investment” shall not include (a) Investments in Joint Ventures existing on the Closing Date, (b) Investments in any securities received in satisfaction or partial satisfaction from financially troubled account debtors or (c) Investments made or deemed made as a result of the receipt of non-cash consideration in connection with Dispositions otherwise permitted hereunder.

 

MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and any successor thereto.

 

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other security document executed by a Loan Party that purports to grant a Lien to the Administrative Agent (or a trustee for the benefit of the Administrative Agent) for the benefit of the Secured Parties in any Mortgaged Properties, in form and substance satisfactory to the Administrative Agent.

 

Mortgaged Property” means any owned real property of a Loan Party with a fair market value of $10,000,000 or greater, as determined by the Company in its reasonable discretion, listed on Schedule 1.01(b) as of the Closing Date, and any other owned parcel of real property of a Loan Party that is or becomes, or is required to become, encumbered by a Mortgage in favor of the Administrative Agent in accordance with the terms of this Agreement.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions as to which the Company or any ERISA Affiliate could have any liability (contingent or otherwise).

 

35



 

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

 

Net Cash Proceeds” means:

 

(a)                                 with respect to any Disposition by the Company or any of its Restricted Subsidiaries, or any Extraordinary Receipt received or paid to the account of the Company or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the actual out-of-pocket expenses incurred or payable by the Company or such Restricted Subsidiary to third parties in connection with such transaction and (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds;

 

(b)                                 in the case of any Recovery Event, the aggregate amount of cash proceeds of insurance, condemnation awards and other compensation (excluding proceeds constituting business interruption insurance or other similar compensation for loss of revenue) received by the Person whose property was subject to such Recovery Event in respect of such Recovery Event net of (A) fees and expenses incurred by or on behalf of the Borrower or any Restricted Subsidiary in connection with recovery thereof, (B) repayments of Indebtedness (other than Indebtedness hereunder) to the extent secured by a Lien on such property that is permitted by the Loan Documents, and (C) any Taxes paid or payable by or on behalf of the Borrower or any Restricted Subsidiary in respect of the amount so recovered (after application of all credits and other offsets arising from such Recovery Event) and amounts required to be paid to any Person (other than any Loan Party) owning a beneficial interest in the subject property; and

 

(c)                                  with respect to the incurrence or issuance of any Indebtedness (including the New Notes) by the Company or any of its Restricted Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other actual out-of-pocket expenses, incurred by the Company or such Restricted Subsidiary to third parties in connection therewith.

 

New Financing” has the meaning specified in Section 2.01(a)(i).

 

New Notes” means the senior unsecured notes to be issued on or prior to the Closing Date by the Company in connection with the Acquisition.

 

Non-Consenting Lender” means (a) any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders and (b) any Revolving Credit Lender whose consent is required fails to consent to any Applicant Borrower becoming a Designated Borrower pursuant to Section 2.15 so long as Revolving Credit Lenders constituting Required Revolving Lenders consent to such Designated Borrower.

 

36



 

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

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

 

Not Otherwise Applied” means, with reference to any calculation of the Cumulative Available Amount after the Amendment No. 5 Effective Date, that such amount is not then being utilized pursuant to Section 7.03(j) and has not been utilized pursuant to Section 7.06(e) after the Amendment No. 5 Effective Date (it being understood that with respect to any Investment made under Section 7.03(j), the amount thereof that has been repaid to the investor in cash as dividends or distributions received in connection with such Investment, or as a repayment of principal or a return of capital (up to the amount of the initial Investment), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, shall be deemed not to be utilized at such time pursuant to such Section 7.03(j)). As of the Amendment No. 5 Effective Date, the entire Cumulative Available Amount is Not Otherwise Applied and, for the avoidance of doubt, no Investment or Restricted Payment made prior to the Amendment No. 5 Effective Date will be taken into account in the calculation hereunder.

 

Note” means a Term A US Note, a Term A CAD Note, a Term A AUD Note, a Term B Note or a Revolving Credit Note, as the context may require.

 

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement, Secured Hedge Agreement or Secured Performance Letter of Credit, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the Obligations shall exclude any Excluded Swap Obligations.

 

Offshore Associate” means an Associate, (a) which is a non-resident of Australia and does not become a Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of the Associate in Australia; or (b) which is a resident of Australia and which becomes a Lender or receives a payment in carrying on a business in a country outside Australia at or through a permanent establishment of the Associate in that country; and (c) which does not become a Lender in the capacity of a dealer , manager or underwriter in relation to the invitation to become a Lender or a clearing house, custodian, funds manager or responsible entity of a registered scheme nor receive payment in the capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme.

 

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

 

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, Joint Venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

37



 

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

 

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

 

Outstanding Amount” means (a) with respect to Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts.

 

Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the applicable L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.

 

Participant” has the meaning specified in Section 10.06(d).

 

Participant Register” has the meaning specified in Section 10.06(d).

 

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

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

Pension Act” means the Pension Protection Act of 2006.

 

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

 

38



 

Pension Plan” means any employee pension benefit plan (other than a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company and any ERISA Affiliate as to which the Company or any ERISA Affiliate could have any liability (contingent or otherwise) and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

Performance Contingent Obligations” means any bid, performance or similar project related bonds, parent company guarantees, bank guaranties or surety bonds or Performance Letters of Credit.

 

Performance Letter of Credit” means a standby letter of credit (including Letters of Credit issued hereunder) used directly or indirectly to cover bid, performance, advance and retention obligations, including, without limitation, letters of credit issued in favor of sureties who in connection therewith cover bid, performance, advance and retention obligations.

 

Performance Letter of Credit Fee” has the meaning specified in Section 2.03(i).

 

Permitted Acquisitionmeans the non-hostile purchase or other acquisition of one or more related businesses so long as:

 

(a)                                 the Person to be acquired becomes, or the assets to be acquired are acquired by, the Company or a Restricted Subsidiary of the Company;

 

(b)                                 no Event of Default exists either on the date the agreement governing such acquisition is executed or on the date of consummation thereof (either before or after such consummation), subject to Section 2.16(d)(i);

 

(c)                                  after giving effect to such acquisition, the Consolidated Leverage Ratio (determined as of the most recently completed relevant period after giving pro forma effect to such acquisition, any adjustments to adjusted Consolidated EBITDA made in connection therewith and any Indebtedness (including any Credit Extensions) incurred in connection therewith) shall be at least 0.25 less than the then-applicable Consolidated Leverage Ratio required pursuant to Section 7.11(b);

 

(d)                                 without limitation of clause (c) above, after giving effect to such acquisition, the Company is in compliance with the other financial covenants contained in Section 7.11 (determined as of the most recently completed relevant period after giving pro forma effect to such acquisition, any adjustments to adjusted Consolidated EBITDA made in connection therewith and any Indebtedness (including any Credit Extensions) incurred in connection therewith); and

 

(e)                                  the Administrative Agent shall have received a certificate certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (c) and (d) above.

 

Permitted Capital Stock Buybacks” means the acquisition by the Company of shares of the Company’s Capital Stock provided that:

 

(a) no Default or Event of Default shall have occurred and be continuing both before and immediately after giving effect to such acquisition;

 

(b) such acquisition shall not be in violation of Regulations U and X of the FRB; and

 

39



 

(c) such acquisition shall be permitted by Section 7.06.

 

Permitted Closing Date Indebtedness” means the following Indebtedness of the Company and its Subsidiaries (giving effect to the Acquisition) as of the Closing Date: (a) Indebtedness under the Facilities; (b) the New Notes; (c) the Existing Target Notes (to the extent not previously put and purchased by the Company or the Target pursuant to the Target Note Put Right); (d) Indebtedness of the Company and its Subsidiaries (prior to giving effect to the Acquisition) outstanding as of July 11, 2014, other than (i) Indebtedness and commitments under the Existing Credit Agreements and (ii) the Existing Company Notes; (e) Indebtedness of the Target and its Subsidiaries (prior to giving effect to the Acquisition) outstanding as of July 11, 2014 or permitted to be incurred or outstanding pursuant to the Acquisition Agreement, other than Indebtedness under the Existing Target Credit Agreement; (f) accounts receivable financings and short-term financings existing as of the Closing Date; (g) financings of or related to AECOM Capital projects (including Guarantees with respect thereto) consistent with the business plan of AECOM Capital in effect on July 11, 2014; (h) other Indebtedness for borrowed money, including securitizations, real estate financings, capital leases and purchase money financings, in an aggregate principal amount outstanding not to exceed $125 million, or otherwise reasonably satisfactory to the Arrangers; and (i) replacements, extensions and renewals of any Indebtedness for borrowed money described in clauses (a) through (h) above at maturity, without any material increase of the principal amount thereof.  For purposes of this definition, “Indebtedness for borrowed money” excludes for the avoidance of doubt (i) the deferred purchase price of property or services in the ordinary course of business (but not purchase money financings for fixed or capital assets or Capitalized Leases), (ii) trade debt, (iii) earnout obligations, (iv) obligations under letters of credit and similar instruments, (v) obligations under operating leases, (vi) Indebtedness under ordinary course hedging arrangements (not entered into for speculative purposes), (vi) Performance Contingent Obligations, (vii) obligations under bank guaranties or surety bonds and (viii) Guarantees or other contingent obligations.

 

Permitted L/C Party” means the Company, any Restricted Subsidiary of the Company and any Joint Venture.

 

Permitted Liens” means the Liens permitted by Section 7.01.

 

Person” means any natural person, corporation, limited liability company, trust, Joint Venture, association, company, partnership, Governmental Authority or other entity.

 

Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan, but not including a Multiemployer Plan or Multiple Employer Plan), maintained for employees of the Company or any ERISA Affiliate or any such Plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

Platform” has the meaning specified in Section 6.02.

 

PLOC Bank” means any Person that, at the time it issues a Performance Letter of Credit for the account of any Borrower and/or any (or one or more) Subsidiary of a Borrower that is permitted to be secured by a Lien on Collateral pursuant to Section 7.01(q), is a Lender or an Affiliate of a Lender, in its capacity as the issuer of such Performance Letter of Credit.

 

PPSA” means the Personal Property Securities Act 2009 (Cth).

 

40



 

Preferred Stock” means, as applied to the Equity Interests of any Person, Equity Interests of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Equity Interests of any other class of such Person.

 

Prime Bank” means a bank determined by ASX Benchmarks Pty Limited (or any other person which takes over the administration of BBSY for Australian dollars) as being a Prime Bank or an acceptor or issuer of bills of exchange or negotiable certificates of deposit for the purposes of calculating BBSY. If ASX Benchmarks Pty Limited or such other person ceases to make such determination, the Prime Banks shall be the Prime Banks last so appoint.

 

Priority Indebtedness” means (a) any Indebtedness of the Company secured by a Lien permitted solely under Section 7.01(e) and (b) any Indebtedness of a Restricted Subsidiary; provided that there shall be excluded from any calculation of Priority Indebtedness the Indebtedness of any Restricted Subsidiary evidenced by (i) a Guarantee of the Indebtedness of the Company owing pursuant to this Agreement and (ii) a Guarantee delivered by a Guarantor of other Indebtedness of the Company.

 

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

 

Public Lender” has the meaning specified in Section 6.02.

 

Qualified ECP Guarantor” shall mean, at any time, the Company, each Domestic Borrower that is not an Excluded Subsidiary, and each Guarantor with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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

 

Recipient” means the Administrative Agent, any Lender, the L/C Issuers or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

 

Recovery Event” shall mean any settlement of or payment in respect of any property or casualty insurance claim or any taking or condemnation proceeding relating to any asset of the Company or any Restricted Subsidiary.

 

Register” has the meaning specified in Section 10.06(c).

 

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

 

Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

 

41



 

Repricing Transaction” means (a) the prepayment, refinancing, substitution or replacement of all or a portion of the Term B Loans with the proceeds of, or any conversion of Term B Loans into, any new or replacement loans or similar bank indebtedness (excluding any Revolving Credit Borrowings) bearing interest with an “effective yield” (taking into account upfront fees, interest rate spreads, interest rate benchmark floors and original issue discount, with original issue discount being equated to interest based on an assumed four-year life to maturity) less than the “effective yield” applicable to the Term B Loans subject to such transaction (as such comparative yields are determined by the Administrative Agent) and (b) any amendment or modification to this Agreement which reduces the “effective yield” (other than as a result of no longer applying the Default Rate) applicable to all or a portion of the Term B Loans (it being understood that any amount required to be paid with respect to a Repricing Transaction shall apply to any required assignment by a Non-Consenting Lender under the Term B Facility); provided that any event or transaction described in clause (a) or (b) above that results in the payment in full of the then Outstanding Amount of all Term B Loans and is undertaken in connection with a Change of Control shall not constitute a “Repricing Transaction” hereunder.

 

Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that any Defaulting Lender which is a Revolving Credit Lender has failed to fund that have not been reallocated to and funded by another Revolving Credit Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the affected L/C Issuer, as the case may be, in making such determination.

 

Required Revolving Lenders” means, at any time, Revolving Credit Lenders having Total Revolving Credit Exposures representing more than 50% of the Total Revolving Credit Exposures of all Revolving Credit Lenders.  The Total Revolving Credit Exposure of any Defaulting Lender which is a Revolving Credit Lender shall be disregarded in determining Required Revolving Lenders at any time; provided that, the amount of any participation in any outstanding Swing Line Loan and any outstanding Unreimbursed Amounts under the Revolving Credit Facility that such Defaulting Lender has failed to fund and that have not otherwise been Cash Collateralized and/or reallocated to and funded by another Revolving Credit Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the affected L/C Issuer, as the case may be, in making such determination.

 

Required Term A AUD Lenders” means, as of any date of determination, Term A AUD Lenders having Total Term A AUD Loan Exposure representing more than 50% of the Total Term A AUD Loan Exposure of all Term A AUD Lenders on such date; provided that the portion of the Term A AUD Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A AUD Lenders.

 

Required Term A CAD Lenders” means, as of any date of determination, Term A CAD Lenders having Total Term A CAD Loan Exposure representing more than 50% of the Total Term A CAD Loan Exposure of all Term A CAD Lenders on such date; provided that the portion of the Term A CAD Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A CAD Lenders.

 

42



 

Required Term A US Lenders” means, as of any date of determination, Term A US Lenders having Total Term A US Loan Exposure representing more than 50% of the Total Term A US Loan Exposure of all Term A US Lenders on such date; provided that the portion of the Term A US Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A US Lenders.

 

Required Term B Lenders” means, as of any date of determination, Term B Lenders having Total Term B Loan Exposure representing more than 50% of the Total Term B Loan Exposure of all Term B Lenders on such date; provided that the portion of the Term B Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B Lenders.

 

Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for the purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Restricted Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof).

 

Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.

 

Revaluation Date” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iv) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing Date, and (v) such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required Lenders shall require.

 

Revolver Commitment Fee” has the meaning specified in Section 2.09(a)(i).

 

Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(c).

 

43