Deposit Account Control Agreement has the meaning assigned to such term in the Security Agreement.
Disclosed Matters means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06.
Disposition means, with respect to any Person, any sale, transfer, lease, contribution, division or other conveyance (including by way of merger) of, or the granting of options, warrants or other rights to, any of such Persons or their respective Subsidiaries assets (including Accounts and Equity Interests of Subsidiaries) to any other Person in a single transaction or series of transactions.
Disqualified Institution means (a) a Person designated by Borrower, by written notice delivered to the Administrative Agent on or prior to the Effective Date, as a (x) disqualified institution, or (y) competitor of Borrower or its subsidiaries (Disqualified Competitors) or (b) any Person that is clearly identifiable, solely on the basis of such Persons name, as an affiliate of any Person referred to in clause (a)(x) or (a)(y) above; provided, however, that Disqualified Institutions shall (A) exclude any Person that Borrower has designated as no longer being a Disqualified Institution by written notice delivered to Agent from time to time and (B) include any Person that is added as a Disqualified Institution, pursuant to a written supplement to the list of Disqualified Institutions, that is delivered by Borrower after the Effective Date to the Administrative Agent.
Division/Series Transaction means, with respect to the Loan Parties and their Subsidiaries, that any such Person (a) divides into two or more Persons (whether or not the original Loan Party or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case as contemplated under the Laws of any jurisdiction.
Document has the meaning assigned to such term in the Security Agreement.
dollars or $ refers to lawful money of the U.S.
Domestic Subsidiary means a Subsidiary organized under the laws of a jurisdiction located in the U.S. (excluding any possession or territory thereof).
EBITDA means, for any period, Net Income for such period plus (a) without duplication and to the extent deducted in determining Net Income for such period, the sum of (i) Interest Expense for such period, (ii) income tax expense for such period, (iii) all amounts attributable to depreciation and amortization expense for such period, (iv) any extraordinary non-cash charges for such period, (v) any other non-cash charges for such period (but excluding (x) any non-cash charge in respect of an item that was included in Net Income in a prior period and (y) non-cash charges that relate to the write-down or write-off of inventory, except, in the case of this clause (y), where (I) such inventory was manufactured or purchased by a Loan Party on or before December 31, 2016, (II) such write-down or write-off of such inventory occurs on or prior to the date that is the second anniversary of the Effective Date and (III) the aggregate amount of such non-cash charges does not exceed (A) during the period commencing on the Effective Date and ending on March 8, 2020, $14,000,000 in the aggregate for such period and (2) during the period commencing on March 9, 2020 and ending on March 8, 2021, $14,000,000 in the aggregate for such period), (vi) in each case to the extent calculated in good faith and factually supportable pursuant to documentation and analysis delivered to Administrative Agent, the amount of any restructuring charge, reserve, integration cost or other business optimization expense or cost (including charges directly related to implementation of cost-savings initiatives) that is deducted (and not added back) in such period in computing Net Income including, without limitation, those related to severance, retention, signing bonuses, relocation, recruiting and other employee related costs; provided, that the aggregate amount added back to Net Income pursuant to this clause (vi) shall not exceed 10% of EBITDA, (vii) in each case to the extent incurred after the Effective Date and without duplication of clause (ix) below, the amount of other customary and reasonable accruals, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred during such period in connection with any Acquisition, Investment, Restricted Payment, issuance of Equity Interests or other incurrence of Indebtedness or disposition permitted hereunder (whether or not any such transaction undertaken was completed), (viii) the amount of any expenses, charges or losses for such period that are covered by indemnification or other reimbursement provisions in connection with any Acquisition, Investment, Restricted Payment, issuance of Equity Interests or other incurrence of Indebtedness or disposition permitted hereunder, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination, (ix) other expenses, charges or losses disclosed to the Administrative Agent prior to the Effective Date and acceptable to the Administrative Agent, (x) any non-recurring fees, cash charges and other cash expenses (including severance costs) made or incurred in connection with the initial Transactions that are paid or otherwise accounted for within 180 days of consummation of the initial Transactions in an amount not to exceed $12,500,000, and (xi) any reasonable and documented non-recurring fees, cash charges and other cash expenses made or incurred prior to January 1, 2022, in connection with the Disposition contemplated by the Equity Purchase Agreement; provided that the aggregate amount added back to EBITDA pursuant to this clause (xi) shall not exceed $9,000,000 during the term of this Agreement, minus (b) without duplication and to the extent included in Net Income, (i) any cash payments made during such period in respect of non-cash charges described in clause (a)(v) taken in a prior period and (ii) any extraordinary gains and any non-cash items of income for such period, all calculated for the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP); provided, that for any Covenant Testing Period ending on or prior to November 30, 2019, EBITDA for any of the following months, shall be deemed to be: