Contract
Exhibit 10.1
Execution Version
AMENDMENT NO. 6, dated as of December 3, 2024 (this “Amendment”), to the Amended and Restated Credit Agreement, dated as of March 18, 1999, as amended and restated on April 26, 2019, as amended by Amendment No. 1 on October 24, 2019, as amended by Amendment No. 2 on May 26, 2022, as amended by Amendment No. 3 on February 10, 2023, as amended by Amendment No. 4 on March 23, 2023 and as further amended by Amendment No. 5 on December 7, 2023 (the “Existing Credit Agreement”, the Existing Credit Agreement, as amended by this Amendment, the “Credit Agreement”), by and among CHARTER COMMUNICATIONS OPERATING, LLC, a Delaware limited liability company (“Borrower”), CCO HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), the LENDERS and ISSUING LENDERS from time to time party thereto and BANK OF AMERICA, N.A., as administrative agent (the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Existing Credit Agreement or the Credit Agreement, as the context requires.
WHEREAS, the Borrower wishes to (a) establish a new class of Revolving C Commitments (including by converting a portion of the Revolving B Commitments to Revolving C Commitments (as defined in the Credit Agreement)), (b) convert a portion of the Term A-5 Loans outstanding immediately prior to the Amendment No. 6 Effective Date to Term A-7 Loans (as defined in the Credit Agreement) and repay any remaining Term A-5 Loans that are not converted to Term A-7 Loans, (c) convert or replace a portion of its Term B-2 Loans outstanding immediately prior to the Amendment No. 6 Effective Date with a new tranche of Term B-5 Loans (as defined in the Credit Agreement) and repay any remaining Term B-2 Loans that are not converted to Term B-5 Loans and (d) make certain other amendments to the Credit Agreement;
SECTION 1. Amendment of the Credit Agreement.
(a) The
Existing Credit Agreement is, effective as of the Amendment No. 6 Effective Date, hereby amended to delete the stricken text (indicated
textually in the same manner as the following example: stricken text) and to add the
double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto. Additionally, on the Amendment
No. 6 Effective Date, (i) the Revolving C Commitment of each Revolving Lender and the Revolving B Commitments of each Revolving
Lender, (ii) the Term A-7 Additional Commitments of each Term A-7 Additional Lender and (iii) the Term B-5 Additional Commitments
of each Term B-5 Additional lender, in each case, shall be as set forth on Schedule I hereto. For the avoidance of doubt, the
aggregate principal amount of Term A-7 Loans of each Term A-7 Lender on the Amendment No. 6 Effective Date, immediately after giving
effect to this Amendment, shall be as set forth on Schedule II hereto.
(b) Schedule 10.2 to the Credit Agreement is, effective as of the Amendment No. 6 Effective Date, hereby amended and restated in its entirety as set forth on Exhibit B attached hereto.
SECTION 2. Effectiveness. This Amendment shall become effective on the date (such date and time of effectiveness, the “Amendment No. 6 Effective Date”) that each of the conditions precedent set forth below shall have been satisfied:
(a) The Administrative Agent shall have received executed counterparts hereof from the Borrower, Holdings, the Issuing Lenders, the Swingline Lender, Lenders constituting the Required Lenders, each Lender listed on Schedule I hereto as having a Revolving C Commitment, a Term A-7 Additional Commitment and/or Term B-5 Additional Commitment, each Converting Consenting Term B-2 Lender and each Converting Consenting Term A-5 Lender ;
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(b) On the Amendment No. 6 Effective Date, the Administrative Agent shall have received the legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, which opinion shall be in form and substance reasonably satisfactory to the Administrative Agent;
(c) The Administrative Agent shall have received completed Notices of Borrowing for the Term A-7 Loans and the Term B-5 Loans;
(d) The Administrative Agent shall have received from a Responsible Officer of the Borrower a certificate in form and substance reasonably satisfactory to the Administrative Agent certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to this Amendment and the payment of all fees and expenses in connection therewith, are Solvent;
(e) The Administrative Agent shall have received from the Borrower upfront fees for the account of each Lender equal to: (i) in the case of each Lender that is not a Revolving Lender or a Term A-5 Lender immediately prior to the Amendment No. 6 Effective Date, 0.20% of the sum of (A) the aggregate principal amount of the Revolving C Commitment of such Revolving Lender actually made available to the Borrower and (B) the aggregate principal amount of Term A-7 Loans funded by such Lender, in each case, on the Amendment No. 6 Effective Date, (ii) in the case of each Lender that is a Revolving Lender and/or a Term A-5 Lender immediately prior to the Amendment No. 6 Effective Date, the sum of (A) 0.08% of the sum of (x) the aggregate principal amount of the Revolving C Commitment of such Lender actually made available to the Borrower and (y) the aggregate principal amount of Term A-7 Loans funded (including through the conversion of any Converted Term A-5 Loans) by such Lender, in each case, on the Amendment No. 6 Effective Date, in an aggregate principal amount up to the sum of (1) such Xxxxxx’s Revolving B Commitment and (2) such Xxxxxx’s Term A-5 Loans, in each case, in effect immediately prior to the Amendment No. 6 Effective Date, and (B) 0.20% of the amount, if any, by which the sum of (x) the aggregate principal amount of the Revolving C Commitment of such Lender actually made available to the Borrower and (y) the aggregate principal amount of Term A-7 Loans funded (including through the conversion of any Converted Term A-5 Loans) by such Lender, in each case, on the Amendment No. 6 Effective Date, exceeds the sum of (1) such Xxxxxx’s Revolving B Commitment and (2) such Lender’s Term A-5 Loans, in each case, in effect immediately prior to the Amendment No. 6 Effective Date, and (iii) 0.25% of the aggregate principal amount of Term B-5 Loans funded (including through the conversion of any Converted Term B-2 Loans) by such Lender on the Amendment No. 6 Effective Date;
(f) Prior to, or substantially concurrently with, the Amendment No. 6 Effective Date, the Amendment No. 6 Term A-5 Loan Prepayment and the Amendment No. 6 Term B-2 Loan Prepayment shall have occurred;
(g) Substantially concurrently with the Amendment No. 6 Effective Date, the Borrower shall have (x) paid, or concurrently herewith shall pay, to the Administrative Agent for the benefit of the applicable Lenders all accrued (i) commitment fees pursuant to Section 2.6(a) of the Existing Credit Agreement and (ii) Letter of Credit fees pursuant to the first sentence of Section 3.3(a) of the Existing Credit Agreement, in each case, to but excluding the Amendment No. 6 Effective Date, and (y) repaid all Revolving B Loans (if any) that are outstanding immediately prior to the Amendment No. 6 Effective Date, together with all accrued and unpaid interest thereon up to but excluding the Amendment No. 6 Effective Date; and
(h) The Borrower shall have paid, or concurrently herewith shall pay to the Administrative Agent for the benefit of the applicable Agents, to the extent invoiced, the reasonable documented out-of-pocket expenses of such Agents in connection with this Amendment.
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SECTION 3. Representations and Warranties. In order to induce the Lenders and the Administrative Agent to enter into this Amendment, each of the Borrower and Holdings represents and warrants, on behalf of itself and each Loan Party, to each of the Lenders, the Issuing Lenders and the Administrative Agent that, after giving effect to this Amendment, and both before and after giving effect to the transactions contemplated by this Amendment:
(a) no Default or Event of Default has occurred and is continuing; and
(b) each of the representations and warranties made by each of the Loan Parties in or pursuant to the Loan Documents is true and correct in all material respects on and as of the date hereof as if made on the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, in all material respects as of such specific date) and in each case without duplication of any materiality qualifier therein.
SECTION 4. Reference to and Effect on the Loan Documents. On and after the Amendment No. 6 Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Existing Credit Agreement and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement,” “thereunder,” “thereof” or words of like import referring to the Existing Credit Agreement shall mean and be a reference to the Existing Credit Agreement, as amended by this Amendment. The Existing Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Loan Document. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. Each of the Borrower and Holdings consents to the Amendment and, on behalf of itself and each Loan Party, reaffirms each Loan Party’s obligations under the Loan Documents to which it is party and each Loan Party’s prior grant and the validity, enforceability and perfection of the Liens granted by each Loan Party pursuant to the Loan Documents with all such Liens continuing in full force and effect after giving effect to the Amendment. This Amendment shall not constitute a novation of the Existing Credit Agreement or any other Loan Document. This Amendment shall constitute an Incremental Activation Notice in accordance with Section 2.1 of the Existing Credit Agreement.
SECTION 5. Applicable Law; Waiver of Jury Trial.
(A) THIS AMENDMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM HEREIN.
(C) The provisions of Section 10.12 of the Credit Agreement are incorporated herein, mutatis mutandis.
SECTION 6. Headings. The Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of an original executed counterpart hereof. The provisions of Section 10.17 of the Credit Agreement are incorporated herein, mutatis mutandis.
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SECTION 8. Tax Matters. The parties agree that (i) all of the Term A-7 Loans (whether issued for cash or upon conversion of Term A-5 Loans) will be treated as one fungible tranche for U.S. federal income tax purposes and (ii) all of the Term B-5 Loans (whether issued for cash or upon conversion of Term B-2 Loans) will be treated as one fungible tranche for U.S. federal income tax purposes.
SECTION 9. Waiver. Subject to the occurrence of the Amendment No. 6 Effective Date, each Lender party to this Amendment agrees (x) to waive (i) the payment to such Lender of any breakage costs pursuant to Section 2.18 of the Credit Agreement in connection with the prepayment of any Loans on the Amendment No. 6 Effective Date and (ii) solely in connection with the transactions contemplated by this Amendment, the delivery by the Borrower of a notice pursuant to Sections 2.7(a) and/or 2.8(a) of the Credit Agreement relating to the prepayment of any Loans or the cancellation of any Commitments on the Amendment No. 6 Effective Date, and (y) that Sections 2.7, 2.8 and 2.15 do not apply to the prepayment of any Loans or the cancellation of any Commitments on the Amendment No. 6 Effective Date.
SECTION 10. Joint Lead Arrangers, Joint Bookrunners and Co-Managers. Bank of America, N.A., Citibank, N.A., Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Securities, LLC, Barclays Bank PLC, BNP Paribas Securities Corp., Credit Agricole Corporate and Investment Bank, Xxxxxxx Xxxxx Bank USA, Mizuho Bank, Ltd., RBC Capital Markets, Sumitomo Mitsui Banking Corporation and TD Securities (USA) LLC acted as joint lead arrangers and joint bookrunners for this Amendment and shall be entitled to all rights, privileges and immunities applicable to the “Joint Lead Arrangers” under the Loan Documents in connection herewith. Canadian Imperial Bank of Commerce, New York Branch, Truist Securities, Inc. and U.S. Bank National Association, acted as co-managers for this Amendment and shall be entitled to all rights, privileges and immunities applicable to the “Co-Managers” under the Loan Documents in connection herewith.
[Signature pages to follow]
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| CHARTER COMMUNICATIONS OPERATING, LLC, as Borrower | ||
| By: | Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Group Vice President, Corporate Finance and Treasurer | ||
| CCO HOLDINGS, LLC, as Holdings | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Group Vice President, Corporate Finance and Treasurer | ||
[Amendment No. 6 to Charter Communications Credit Agreement]
| BANK OF AMERICA, N.A, as Administrative Agent, Term B-5 Additional Lender, Term A-7 Lender, Swingline Lender and Issuing Lender | ||
| By: | /s/ Don. X. Xxxxxx | |
| Name: Don. X. Xxxxxx | ||
| Title: Vice President | ||
[Amendment No. 6 to Charter Communications Credit Agreement]
| [NAME OF XXXXXXX XXXXXX], as Xxxxxxx Xxxxxx | ||
| By: | ||
| Name: | ||
| Title: | ||
[Amendment No. 6 to Charter Communications Credit Agreement]
| Lender Signature Page to Amendment No. 6 | ||
| [NAME OF INSTITUTION], as a Revolving Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: | ||
| Name: | ||
| Title: | ||
Conversion to Revolving C Commitments
| ¨ | Check this box if the above-named Lender holds a Revolving B Commitment and it is requesting to convert 100% of such Revolving B Commitment (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) to a Revolving C Commitment on the Amendment No. 6 Effective Date. |
[Amendment No. 6 to Charter Communications Credit Agreement]
Lender Signature Page to Amendment No. 6
| [NAME OF INSTITUTION], as a Term A-7 Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: | ||
| Name: | ||
| Title: | ||
Conversion to Term A-7 Loans
| ¨ | Check this box if the above-named Lender holds a Term A-5 Loan and it is requesting to have converted 100% of such Term A-5 Loan (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) to a Term A-7 Loan on the Amendment No. 6 Effective Date. |
[Amendment No. 6 to Charter Communications Credit Agreement]
Lender Signature Page to Amendment No. 6
The undersigned hereby consents to Amendment No. 6 and, to the extent set forth below, hereby agrees to either (x) have up to 100% of the undersigned Xxxxxx’s outstanding principal amount (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) of Term B-2 Loans converted to Term B-5 Loans or (y) have up to 100% of the undersigned Lender’s outstanding principal amount of Term B-2 Loans on the Amendment No. 6 Effective Date (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) repaid on the Amendment No. 6 Effective Date and to purchase by assignment from the Term B-5 Additional Lender (or its designated affiliate) Term B-5 Loans under the Credit Agreement in an equal principal amount post-closing.
| ¨ | CASHLESS SETTLEMENT OPTION: | |
| Check box to the left to request conversion of up to 100% of the undersigned Xxxxxx’s outstanding principal amount (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) of Term B-2 Loans to Term B-5 Loans |
| ¨ | ASSIGNMENT SETTLEMENT OPTION: | |
| Check box to the left to request that up to 100% of the undersigned Xxxxxx’s outstanding principal amount of Term B-2 Loans on the Amendment No. 6 Effective Date (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) be repaid on the Amendment No. 6 Effective Date and to purchase by assignment from the Term B-5 Additional Lender (or its designated Affiliate) Term B-5 Loans under the Credit Agreement in an equal principal amount post-closing. |
| [NAME OF INSTITUTION], as a Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Amendment No. 6 to Charter Communications Credit Agreement]
Lender Signature Page to Amendment No. 6
The undersigned hereby consents to Amendment No. 6.
| [NAME OF INSTITUTION] | ||
| By: | ||
| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Amendment No. 6 to Charter Communications Credit Agreement]
| Schedule I Commitments Revolving Lender Revolving B Commitment Revolving C Commitment Bank of America, N.A. $0 $257,500,000 Citibank, N.A. $0 $328,750,000 Deutsche Bank AG New York Branch $0 $657,500,000 JPMorgan Chase Bank, N.A. $0 $328,750,000 Xxxxxx Xxxxxxx Senior Funding, Inc. $0 $160,941,667 Xxxxxx Xxxxxxx Bank, N.A. $0 $167,808,333 Xxxxx Fargo Bank, National Association $0 $328,750,000 Barclays Bank PLC $0 $570,000,000 BNP Paribas $0 $285,000,000 Credit Agricole Corporate and Investment Bank $0 $285,000,000 Xxxxxxx Xxxxx Bank USA $0 $285,000,000 Mizuho Bank, Ltd. $0 $285,000,000 Royal Bank of Canada $0 $285,000,000 Sumitomo Mitsui Banking Corporation $0 $285,000,000 The Toronto-Dominion Bank, New York Branch $0 $285,000,000 Canadian Imperial Bank Of Commerce, New York Branch $0 $235,000,000 Truist Bank $0 $235,000,000 U.S. Bank National $0 $235,000,000 |
| Association UBS AG, Stamford Branch $580,000,000 $0 MUFG Bank, Ltd. $206,650,000 $0 The Bank of Nova Scotia $173,675,000 $0 Total $960,325,000.00 $5,500,000,000.00 Term A-7 Additional Lender Term A-7 Additional Commitment Bank of America, N.A. $13,186,562.50 Citibank, N.A. $17,925,312.50 JPMorgan Chase Bank, N.A. $59,682,187.50 Xxxxxx Xxxxxxx Bank, N.A. $17,925,312.50 Credit Agricole Corporate and Investment Bank $58,842,812.50 Xxxxxxx Xxxxx Bank USA $15,932,187.50 Royal Bank of Canada $15,932,187.50 Canadian Imperial Bank Of Commerce, New York Branch $8,842,812.50 Total $208,269,375.00 Term B-5 Additional Lender Term B-5 Additional Commitment Bank of America, N.A. $1,587,630,898.77 Total $1,587,630,898.77 |
| Schedule II Term A-7 Loans Term A-7 Lender Term A-7 Loans Bank of America, N.A. $524,675,000 Citibank, N.A. $328,750,000 JPMorgan Chase Bank, N.A. $328,750,000 Xxxxxx Xxxxxxx Senior Funding, Inc. $258,750,000 Xxxxxx Xxxxxxx Bank, N.A. $70,000,000 Xxxxx Fargo Bank, National Association $328,750,000 BNP Paribas $285,000,000 Credit Agricole Corporate and Investment Bank $285,000,000 Xxxxxxx Xxxxx Bank USA $285,000,000 Mizuho Bank, Ltd. $285,000,000 Royal Bank of Canada $285,000,000 Sumitomo Mitsui Banking Corporation $285,000,000 The Toronto-Dominion Bank, New York Branch $285,000,000 Canadian Imperial Bank Of Commerce, New York Branch $235,000,000 Truist Bank $235,000,000 U.S. Bank National Association $235,000,000 Total $4,539,675,000.00 |
| Exhibit A Credit Agreement [See attached.] |
| EXHIBIT A Deal CUSIP: 00000XXX0 Revolving B Commitments CUSIP: 00000XXX0 Term A-5 LoanRevolving C Commitments CUSIP: 16117LBY4LCC1 Term A-6 Loan CUSIP: 00000XXX0 Term BA-17 Loan CUSIP: 16117LBW8LCD9 Term B-2 Loan CUSIP: 00000XXX0 Term B-3 Loan CUSIP: 00000XXX0 Term B-4 Loan CUSIP: 00000XXX0 Term B-5 Loan CUSIP: 00000XXX0 AMENDED AND RESTATED CREDIT AGREEMENT CHARTER COMMUNICATIONS OPERATING, LLC, as Borrower, CCO HOLDINGS, LLC, BANK OF AMERICA, N.A., as Administrative Agent, BANK OF AMERICA, N.A., CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC. and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Joint Lead Arrangers and Joint Bookrunners for Amendment No. 2 and Amendment No. 5, BARCLAYS BANK PLC, BNP PARIBAS SECURITIES CORP., CREDIT SUISSE SECURITIES (USA) LLC, XXXXXXX XXXXX BANK USA, JPMORGAN CHASE BANK, N.A., MIZUHO BANK, LTD., MUFG BANK, LTD., RBC CAPITAL MARKETS, TD SECURITIES (USA) LLC and XXXXX FARGO SECURITIES, LLC, as Joint Bookrunners for Amendment No. 2 and Amendment No. 5, and COBANK, ACB, as Lead Arranger and Bookrunner with respect to the Term A-6 Loans and Term B-3 Loans, BANK OF AMERICA, N.A., CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., JPMORGAN CHASE BANK, N.A., XXXXXX XXXXXXX SENIOR FUNDING, INC., XXXXX FARGO SECURITIES, LLC, BARCLAYS BANK PLC, BNP PARIBAS SECURITIES CORP., CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, XXXXXXX XXXXX BANK USA, MIZUHO BANK, LTD., RBC CAPITAL MARKETS, SUMITOMO MITSUI BANKING CORPORATION and TD SECURITIES (USA) LLC, as Joint Lead Arrangers and Joint Bookrunners for Amendment No. 6, and CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, TRUIST SECURITIES, INC. and U.S. BANK NATIONAL ASSOCIATION, as Co-Managers for Amendment No. 6, Dated as of March 18, 1999, as Xxxxxxx and Restated as of April 26, 2019, |
| as amended by Amendment No. 1 on October 24, 2019, as amended by Amendment No. 2 on May 26, 2022 and as amended by Amendment No. 3 on February 10, 2023 as amended by Amendment No. 4 on March 23, 2023 as amended by Amendment No. 5 on December 7, 2023 as amended by Amendment No. 6 on December 3, 2024 - 2- |
| 4.2. No Change 70 4.3. Existence; Compliance with Law 70 4.4. Power; Authorization; Enforceable Obligations 71 4.5. No Legal Bar 71 4.6. Litigation 71 4.7. [Reserved] 71 4.8. Ownership of Property; Liens 71 4.9. [Reserved] 71 4.10. Taxes 71 4.11. Federal Regulations 72 4.12. [Reserved] 72 4.13. [Reserved] 72 4.14. Investment Company Act 72 4.15. Subsidiaries 72 4.16. Use of Proceeds 72 4.17. [Reserved] 72 4.18. [Reserved] 72 4.19. Accuracy of Information, Etc. 72 4.20. Security Interests 72 4.21. Solvency 73 SECTION 5 CONDITIONS PRECEDENT 73 5.1. Conditions to Restatement Effective Date 73 5.2. Conditions to Each Extension of Credit 73 SECTION 6 AFFIRMATIVE COVENANTS 73 6.1. Financial Statements 73 6.2. Certificates; Other Information 75 6.3. Payment of Taxes 76 6.4. Maintenance of Existence; Compliance 76 6.5. Maintenance of Property; Insurance 76 6.6. Books and Records 76 6.7. Notices 76 6.8. [Reserved] 76 6.9. Additional Collateral; Additional Guarantors 77 6.10. [Reserved] 77 6.11. CoBank Equity and Security 77 SECTION 7 NEGATIVE COVENANTS 78 7.1. Financial Condition Covenants 78 7.2. [Reserved] 79 7.3. Liens 79 7.4. Fundamental Changes 81 SECTION 8 EVENTS OF DEFAULT 82 8.1. Events of Default 82 8.2. Application of Funds 85 8.3. Right to Cure Generally 85 8.4. Expired Defaults 86 SECTION 9 THE AGENTS 87 - ii- |
| 9.1. Appointment 87 9.2. Delegation of Duties 87 9.3. Exculpatory Provisions 87 9.4. Reliance by Administrative Agent 88 9.5. Notice of Default 88 9.6. Certain Representations and Agreements by Lenders 89 9.7. Indemnification 90 9.8. Agent in Its Individual Capacity 90 9.9. Successor Administrative Agent 90 9.10. Agents 91 9.11. Collateral and Guaranty Matters 91 9.12. Non-Facility Letters of Credit, Specified Cash Management Agreements and Specified Hedge Agreements 91 9.13. Recovery of Erroneous Payments 92 SECTION 10 MISCELLANEOUS 92 10.1. Amendments and Waivers 92 10.2. Notices 93 10.3. No Waiver; Cumulative Remedies 95 10.4. Survival of Representations and Warranties 95 10.5. Payment of Expenses and Taxes; Indemnification 96 10.6. Successors and Assigns; Participations and Assignments 97 10.7. Adjustments; Setoff 101 10.8. Counterparts 102 10.9. Severability 102 10.10. Integration 102 10.11. GOVERNING LAW 102 10.12. Submission to Jurisdiction; Waivers 102 10.13. Acknowledgments 103 10.14. Release of Guarantees and Liens 103 10.15. Confidentiality 104 10.16. WAIVERS OF JURY TRIAL 104 10.17. Electronic Execution of Assignments and Certain Other Documents 104 10.18. USA Patriot Act; Beneficial Ownership Regulation 105 10.19. Affected Financial Institutions 105 10.20. Intercreditor Agreements 105 10.21. Acknowledgement Regarding Any Supported QFCs 106 10.22. Lender Action 107 10.23. Interest Rate Limitation 107 SCHEDULES: 4.15 Subsidiaries 4.20(a) UCC Filing Jurisdictions 10.2 Notices for Administrative Agent, Swingline Lender and Issuing Lenders -iii- |
| EXHIBITS: A Form of Assignment and Assumption B Form of Compliance Certificate C Form of United States Tax Compliance Certificate D [Reserved] E Form of Notice of Borrowing F Form of Release - iv- |
| “Administrative Agent”: as defined in the preamble hereto. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. “Agent Parties”: as defined in Section 10.2(c). “Agents”: the collective reference to the Syndication Agents, the Joint Bookrunners, the Joint Lead Arrangers, the Co-Managers and the Administrative Agent. “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then unpaid principal amount of such Lender’s Term Loans and (b) the amount of such Xxxxxx’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Xxxxxx’s Revolving Extensions of Credit then outstanding. “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Xxxxxx’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time. “Agreement”: this Amended and Restated Credit Agreement, as further amended, supplemented or otherwise modified from time to time. “Amendment No. 1”: Amendment No. 1 to this Agreement, dated as of October 24, 2019. “Amendment No. 1 Effective Date”: as defined in Amendment No. 1. “Amendment No. 2”: Amendment No. 2 to this Agreement, dated as of May 26, 2022. “Amendment No. 2 Effective Date”: as defined in Amendment No. 2. “Amendment No. 3”: Amendment No. 3 to this Agreement, dated as of February 10, 2023. “Amendment No. 4”: Amendment No. 4 to this Agreement, dated as of March 23, 2023. “Amendment No. 4 Effective Date”: as defined in Amendment No. 4. “Amendment No. 4 Fee Letter”: as defined in Amendment No. 4. “Amendment No. 5”: Amendment No. 5 to this Agreement, dated as of December 7, 2023. “Amendment No. 5 Effective Date”: as defined in Amendment No. 5. “Amendment No. 5 Term B-1 Loan Prepayment6”: Amendment No. 6 to this Agreement, dated as of December 3, 2024. “Amendment No. 6 Effective Date”: as defined in Amendment No. 5.6. - 2- |
| “Annualized Operating Cash Flow”: for any fiscal quarter, an amount equal to Consolidated Operating Cash Flow for such period multiplied by four. “Applicable Margin”: (a) with respect to the Revolving Loans and Swingline Loans pursuant to (i) the Revolving B Commitments and (ii) Revolving C Commitments, the rate per annum set forth under the relevant column heading below based on CCI’s corporate family rating being at least such level: Ratings Level Status ABR Loans Term SOFR Loans Level I Status 0.00% 0.75% Level II Status 0.00% 1.00% Investment Grade Rating 0.125% 1.125% Below Investment Grade Rating 0.25% 1.25% ; provided that as used in this definition and the definition of Commitment Fee Rate: (i) “Level I Status”: a rating equal to or higher than (w) in the case of Xxxxx’x, A2 (or the equivalent), (x) in the case of S&P, A (or the equivalent), (y) in the case of Fitch, A (or the equivalent) and (z) in the case of any other Rating Agency, the equivalent rating by such Rating Agency to the ratings described in clauses (w), (x) and (y); (ii) “Level II Status”: a rating equal to or higher than (w) in the case of Xxxxx’x, Baa1 (or the equivalent), (x) in the case of S&P, BBB+ (or the equivalent), (y) in the case of Fitch, BBB+ (or the equivalent) and (z) in the case of any other Rating Agency, the equivalent rating by such Rating Agency to the ratings described in clauses (w), (x) and (y); (iii) “Investment Grade Rating”: a rating equal to or higher than (w) in the case of Xxxxx’x, Baa3 (or the equivalent), (x) in the case of S&P, BBB—(or the equivalent), (y) in the case of Fitch, BBB—(or the equivalent) and (z) in the case of any other Rating Agency, the equivalent rating by such Rating Agency to the ratings described in clauses (w), (x) and (y). ; provided, further, that for purposes of determining whether on any date Level I Status, Level II Status, Investment Grade Rating or below an Investment Grade Rating applies, if (a) a rating is issued by at least two of Xxxxx’x, S&P and Fitch, and such ratings fall within different levels, then the highest of such ratings shall be used to determine the applicable rating level status unless the lowest of such ratings is more than one level below the highest of such ratings, in which case the level that is one level lower than the highest rating shall be used to determine the applicable rating level status, (b) a rating is issued by only one Rating Agency (x) as a result of two Rating Agencies ceasing to be in the business of rating corporate debt obligations or despite Borrower’s commercially reasonable efforts to maintain a rating from at least two of the Rating Agencies, then such rating shall be used to determine the applicable rating level status and (y) otherwise, the level that is one level lower than such rating shall apply and (c) there is no rating from any Rating Agency, below Investment Grade Rating status shall apply. ; provided, further, that the Applicable Margin with respect to Revolving Loans made pursuant to any Extended Revolving Commitment following the Amendment No. 26 Effective Date shall be as set forth in the applicable Incremental Activation Notice; (b) with respect to Term A-5 Loans, (i) 0.25% in the case of ABR Loans and (ii) 1.25% in the case of Term SOFR Loans; - 3- |
| (c) with respect to Term A-6 Loans, (i) 0.50% in the case of ABR Loans and (ii) 1.50% in the case of Term SOFR Loans; (d) with respect to Term A-7 Loans, (i) 0.25% in the case of ABR Loans and (ii) 1.25% in the case of Term SOFR Loans; (c) with respect to Term A-6 Loans, (i) 0.50% in the case of ABR Loans and (ii) 1.50% in the case of Term SOFR Loans; (e) (d) with respect to Term B-12 Loans, (i) 0.75% in the case of ABR Loans and (ii) 1.75% in the case of Term SOFR Loans; (e) with respect to Term B-2 Loans, (i) 0.75% in the case of ABR Loans and (ii) 1.75% in the case of Term SOFR Loans; (f) with respect to Term B-3 Loans, (i) 1.25% in the case of ABR Loans and (ii) 2.25% in the case of Term SOFR Loans; (g) with respect to Term B-4 Loans, (i) 1.00% in the case of ABR Loans and (ii) 2.00% in the case of Term SOFR Loans; (h) with respect to Term B-5 Loans, (i) 1.25% in the case of ABR Loans and (ii) 2.25% in the case of Term SOFR Loans; (i) with respect to any Incremental Term Loans, such per annum rates as shall be agreed to by the Borrower and the applicable Incremental Term Lenders as shown in the applicable Incremental Activation Notice; and (j) (i) with respect to Extended Term Loans, such per annum rates as shall be agreed to by the Borrower and the applicable Extending Term Lenders as shown in the applicable Incremental Activation Notice. “Applicable Price”: as defined in Section 2.8(b). “Application”: an application, in such form as the relevant Issuing Lender may specify from time to time, requesting such Issuing Lender to open a Letter of Credit. “Approved Fund”: as defined in Section 10.6. “Assignee”: as defined in Section 10.6(b)(i). “Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit A. “Assumption Agreement”: an agreement in substantially the form of the applicable Exhibit to the Guarantee and Collateral Agreement, pursuant to which a Subsidiary of the Borrower becomes a party thereto. “Available Revolving Commitment”: as to any Revolving Lender with any Class of Revolving Commitments at any time, an amount equal to the excess, if any, of (a) such Xxxxxx’s Revolving Commitment of such Class then in effect minus (b) such Xxxxxx’s Revolving Extensions of Credit then outstanding under such Class of Revolving Commitments; provided, that in calculating any Lender’s - 4- |
| Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Benefited Lender”: as defined in Section 10.7(a). “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor). “Borrower”: as defined in the preamble hereto. “Borrower Materials”: as defined in Section 6.1. “Borrowing Date”: any Business Day specified by the Borrower in a Notice of Borrowing as a date on which the Borrower requests the relevant Lenders to make Loans hereunder. “Bright House Acquisition Agreement”: means that certain Contribution Agreement, dated as of March 31, 2015, as amended on May 23, 2015 and as the same may be further amended so long as such amendments are not, taken as a whole, materially adverse to the Lenders, by and among CCI, certain of its subsidiaries and the other parties thereto. “Business”: as defined in Section 4.17(b). “Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to close, or are in fact closed, in the state where the Funding Office is located. “Cash Collateralize”: to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, Issuing Lenders and/or Swingline Lender (as applicable) and the Revolving Lenders, as collateral for L/C Obligations, obligations in respect of Swingline Loans, or - 5- |
| obligations of Revolving Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if an Issuing Lender or Swingline Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable Issuing Lender(s) and/or the Swingline 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. “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits or overnight bank deposits having maturities of twelve (12) months or less from the date of acquisition issued (i) by any commercial bank organized under the laws of the United States or any state thereof or any domestic branch of a foreign commercial bank, in each case having combined capital and surplus of not less than $500,000,000 or (ii) by any Lender; (c) commercial paper of an issuer rated at the time of acquisition at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1 by Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or F-1 by Fitch, Inc. (“Fitch”), or carrying an equivalent rating by a nationally recognized rating agency, if each of the three named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within twelve (12) months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A by S&P or A by Xxxxx’x or A by Fitch; (f) securities with maturities of twelve (12) months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) other short-term investments customarily used by similarly situated borrowers in accordance with their normal investment practices for cash management. “CCH”: Charter Communications Holdings, LLC, a Delaware limited liability company, together with its successors. - 6- |
| “CCI”: Charter Communications, Inc., a Delaware corporation (f/k/a CCH I, Inc.), together with its successors. “Change in Law” means the occurrence, after the Restatement Effective Date, 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 Xxxx-Xxxxx Xxxx 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 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”: as defined in Section 8.1(k). “Charge” means any charge, fee, expense, expenditure, cost, loss, accrual, reserve of any kind and any other deduction included in the calculation of Consolidated Net Income. “Class”: with respect to (i) any Revolving Commitment, refers to whether such Commitment is a Revolving B Commitment, Revolving C Commitment or Extended Revolving Commitment and (ii) any Loan, refers to whether such Loan is a Revolving Loan, a Term A-5 Loan, a Term A-6 Loan, a Term B Loan, a Term B-1A-7, Loan, a Term B-2 Loan, a Term B-3 Loan, a Term B-4 Loan, a Term B-5 Loan, an Incremental Term Loan of a particular Series, an Extended Term Loan of a particular Series or a Replacement Term Loan of a particular Series. “CME” means CME Group Benchmark Administration Limited. “CoBank” means CoBank, ACB, a federally chartered instrumentality of the United States. “CoBank Equities” means any of the Borrower’s stock, patronage refunds issued in the form of stock or otherwise constituting allocated units, patronage surplus (including any such surplus accrued by CoBank for the account of Xxxxxxxx) and other equities in CoBank acquired in connection with, or because of the existence of, the Borrower’s patronage loan from CoBank (or its affiliate), and the proceeds of any of the foregoing. “Code”: the Internal Revenue Code of 1986, as amended from time to time. “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by the Guarantee and Collateral Agreement. “Commitment Fee Rate”: (a) with respect to (i) the Revolving B Commitments existing on the Amendment No. 26 Effective Date and (ii) the Revolving C Commitments existing on the Amendment No. 6 Effective Date, the rate per annum set forth under the relevant column heading below based on CCI’s corporate family rating being at least such level: Ratings Level Status Commitment Fee Rate Level I Status 0.05% - 7- |
| Level II Status 0.10% Investment Grade Rating 0.15% Below Investment Grade Rating 0.20% (b) with respect to any Extended Revolving Commitment, the rate provided in the applicable Incremental Activation Notice. “Commitments”: the collective reference to the Revolving Commitments, the Term A-5 Additional Commitments, the Term A-6 Commitments, the Term B-1 Additional Commitments, the Term B-2A-7 Additional Commitments, the Term B-3 Commitments and, the Term B-4 Commitments and the Term B-5 Additional Commitments. “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with any Loan Party within the meaning of Section 4001 of ERISA or is part of a group that includes any Loan Party and that is treated as a single employer under Section 414 of the Code. “Compliance Certificate”: a certificate duly executed by a Responsible Officer, substantially in the form of Exhibit B. “Conduit Lender”: any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Revolving Commitment. “Conforming Changes” means, with respect to the use, administration of or any conventions associated with Term SOFR, SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “ABR”, “Term SOFR”, “SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent (in consultation with the Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Borrower) is reasonably necessary in connection with the administration of this Agreement and any other Loan Document). “Consideration”: with respect to any Investment or Disposition, (a) any cash or other property (valued at fair market value in the case of such other property) paid or transferred in connection therewith, (b) the principal amount of any Indebtedness assumed in connection therewith and (c) any letters of credit, surety arrangements or security deposits posted in connection therewith. - 8- |
| “Consolidated First Lien Leverage Ratio”: as of the last day of any period, the ratio of (a) the sum of (i) the aggregate principal amount of all Consolidated Total Debt outstanding under this Agreement at such date plus (ii) the aggregate principal amount of any other Consolidated Total Debt of the Borrower and its Subsidiaries at such date that is secured by the Collateral on a basis pari passu with the Indebtedness under this Agreement, determined on a consolidated basis in accordance with GAAP, to (b) Annualized Operating Cash Flow determined in respect of the fiscal quarter ending on such day. “Consolidated Leverage Ratio”: as of the last day of any period, the ratio of (a) Consolidated Total Debt on such day to (b) Annualized Operating Cash Flow determined in respect of the fiscal quarter ending on such day. “Consolidated Net Income”: for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that, GAAP to the contrary notwithstanding, there shall be excluded: (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions, (c) the undistributed earnings of any Subsidiary of the Borrower (including any Excluded Acquired Subsidiary) to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary and [reserved], and (d) whether or not distributed, the income of any Non-Recourse Subsidiary. In addition, to the extent not already included in the net income (or loss) of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, “Consolidated Net Income” shall include the amount of proceeds received by the Borrower and the Subsidiaries from business interruption insurance. “Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of assets (less applicable reserves and other properly deductible items) of the Borrower and its Subsidiaries less the sum of (1) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other intangibles, and (2) all current liabilities, in each case, reflected on the most recent consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the most recent ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.1(a) or (b), determined on a consolidated basis in accordance with GAAP on a pro forma basis to give effect to (x) any Material Acquisition or Material Disposition or (y) any Disposition (other than a Material Disposition) or Acquisition (other than a Material Acquisition), at the option of the Borrower (in the case of this clause (y)), in each case made after such balance sheet date and on or prior to the date of determination. “Consolidated Net Worth”: with respect to any Person, at the date of any determination, the consolidated stockholders’ or owners’ equity of the holders of Equity Interests or partnership interests of such Person and its subsidiaries, determined on a consolidated basis in accordance with GAAP consistently applied, which, for the avoidance of doubt, may, at the Borrower’s option, be calculated on a - 9- |
| consolidated basis in accordance with GAAP on a pro forma basis to give effect to any assets acquired after such balance sheet date and on or prior to the date of determination. “Consolidated Operating Cash Flow”: for any period with respect to the Borrower and its Subsidiaries, (a) Consolidated Net Income for such period plus, (b) without duplication and to the extent deducted in computing Consolidated Net Income for such period, the sum of: (i) total income tax expense, (ii) interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including, solely for this purpose, relating to any Permitted Securitization Financing), (iii) depreciation and amortization expense, (iv) management fees expensed during such period, (v) any extraordinary, unusual or non-recurring Charges, (vi) any Charges consisting of restructuring charges, litigation settlements and judgments and related costs, (vii) Charges, including any loss or discount, on Dispositions of assets outside of the ordinary course of business (including relating to the sale of (A) Securitization Assets or (B) other related assets in connection with a Permitted Securitization Financing (in each case, as determined by the Borrower in good faith)), (viii) other non-cash items reducing such Consolidated Net Income and , (ix) the amount of “run-rate” cost savings projected by the Borrower in good faith, net of the amount of actual benefits realized or expected to be realized prior to or during such period (which cost savings shall be net “run-rate” cost savings, operating expense reductions, other operating improvements, revenue enhancements and operating synergies (calculated on a pro forma basis as though theysuch items had been realized on the first day of such period) fromas a result of actions taken or to be taken within four fiscal quarters of any Material Acquisition or Disposition of a line of business or cable system; provided that (A) a Responsible Officer of the Borrower shall have certified in writing to the Administrative Agent that (x) such cost savings are reasonably identifiable and expected to be achieved based on such actions and (y) the benefits resulting therefrom are anticipated by the Borrower to be realized within twelve (12) months of such Material Acquisition or Disposition and (B)in connection with any acquisition, investment, expansion, disposition or restructuring, operating improvements, production and sourcing initiative, cost savings initiative, new initiatives, new product or service roll outs and entry into new markets by the Borrower or any of its Subsidiaries, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated Operating Cash Flow from such actions and only to the extent that the same have been realized or are reasonably expected to be realized within twenty four (24) months of the date thereof (including from any action taken in whole or in part prior to such date); provided - 10- |
| that, the aggregate amount added back pursuant to this clause (ix) for any period shall not exceed 25% of Consolidated Operating Cash Flow for such period prior to giving effect to this clause (ix), and (x) transaction costs incurred in connection with any acquisition or other investment, disposition, equity issuance or incurrence of Indebtedness (including any amendments or waivers to the Loan Documents or any other Indebtedness permitted under the Loan Documents), in each case whether or not consummated, or in connection with obtaining and maintaining any credit ratings, minus, (c) without duplication and to the extent included in the statement of Consolidated Net Income for such period, the sum of (i) any extraordinary or non-recurring income or gains, (ii) gains on Dispositions of assets outside of the ordinary course of business and (iii) other non-cash items increasing such Consolidated Net Income, all as determined on a consolidated basis in accordance with GAAP. “Consolidated Total Debt”: at any date, the aggregate principal amount of, without duplication, (i) all Indebtedness of such Person and its Subsidiaries described in clauses (a), (c) and (f) (excluding, for the avoidance of doubt, surety bonds, performance bonds and similar instruments) of the definition of “Indebtedness”, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP, including, without duplication, the outstanding principal amount of the Loans; provided that Consolidated Total Debt shall not include (a) Indebtedness incurred by a Non-Recourse Subsidiary, Securitization Subsidiary, factoring Subsidiary or other special purpose entity, (b) obligations in respect of letters of credit (including Letters of Credit), except to the extent of any unreimbursed amounts thereunder, (c) Indebtedness constituting Finance Lease Obligations, purchase money debt or other similar Indebtedness or (d) supply chain financing agreements (as determined by the Borrower in good faith); minus (ii) the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than any Lien that is not prohibited by Section 7.3) included in the consolidated balance sheet of the Borrower and its Subsidiaries as of such date. “Contractual Obligation”: as to any Person, any provision of any debt or equity 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. “Converted Fifth Amendment Term BA-15 Loan”: as to any Converting Consenting Fifth Amendment Term BA-45 Lender that has indicated on its counterpart to Amendment No. 56 that it is requesting to convert its Term BA-15 Loan to a Term BA-47 Loan, the entire aggregate principal amount of such Converting Consenting Fifth Amendment Term BA-45 Lender’s Term BA-15 Loan (or, if less, the amount notified to such Lender by the Administrative Agent prior to the Amendment No. 56 Effective Date). “Converted Term B-2 Loan”: as to any Converting Consenting Term B-2 Lender that has indicated on its counterpart to Amendment No. 16 that it is requesting to convert its Term B Loan to a - 11- |
| Term B-1 Loan and/or a Term B-2 Loan to a Term B-5 Loan, the entire aggregate principal amount of such Converting Consenting Term B-2 Lender’s Term B-2 Loan (or, if less, the amount notified to such Lender by the Administrative Agent prior to the Amendment No. 16 Effective Date). “Converted Second Amendment Term A Loan”: as to any Converting Second Amendment Term A Lender that has indicated on its counterpart to Amendment No. 2 that it is requesting to convert its Term A-4 Loan to a Term A-5 Loan, the entire aggregate principal amount of such Converting Term A-5 Lender’s Term A-4 Loan (or, if less, the amount notified to such Lender by the Administrative Agent prior to the Amendment No. 2 Effective Date). “Converting Consenting Fifth Amendment Term B-4 Lender”: each Lender with a Term B-1 Loan immediately prior to the Amendment No. 5 Effective Date that has returned a counterpart to Amendment No. 5 indicating its election to have its Term B-1 Loan converted to a Term B-4 Loan on the Amendment No. 5 Effective Date. “Converting Second Amendment Term A Lender”: each Lender with a Term A-4 Loan immediately prior to the Amendment No. 2 Effective Date that has returned a counterpart to Amendment No. 2 indicating its election to have its Term A-4 Loan converted to a Term A-5 Loan on the Amendment No. 2 Effective Date. “Converting Term B Lender”: each Lender with a Term B Loan immediately prior to the Amendment No. 1 Effective Date that has returned a counterpart to Amendment No. 1 indicating its election to have its Term B Loan converted to a Term B-1 Loan and/or a Term B-2 Loan, as applicable, on the Amendment No. 1 Effective Date. “Converting Consenting Term A-5 Lender”: each Lender with a Term A-5 Loan immediately prior to the Amendment No. 6 Effective Date that has returned a counterpart to Amendment No. 6 indicating its election to have 100% of its Term A-5 Loan (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) converted to a Term A-7 Loan on the Amendment No. 6 Effective Date. “Converting Consenting Term B-2 Lender”: each Lender with a Term B-2 Loan immediately prior to the Amendment No. 6 Effective Date that has returned a counterpart to Amendment No. 6 indicating its election to have 100% of its Term B-2 Loan (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment No. 6 Effective Date) converted to a Term B-5 Loan on the Amendment No. 6 Effective Date. “Co-Managers”: the Persons identified on the cover of this Agreement as “Co-Managers” in their capacities as such. “Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source). “De Minimis Subsidiary” at any date of determination, each Subsidiary of the Borrower that (x) is not a Specified Excluded Subsidiary and (y) does not account for more than 10% of (i) Total Assets on the date of the most recent consolidated balance sheet delivered pursuant to Section 6.1(a) or (b) or (ii) consolidated total revenues of the Borrower and its Subsidiaries for the period of four fiscal quarters ending on the date of the most recent consolidated balance sheet delivered pursuant to Section 6.1(a) or (b); provided that if, in the aggregate, Subsidiaries of the Borrower that are not Subsidiary Guarantors and that are not otherwise Specified Excluded Subsidiaries account for more than 20% of (i) Total Assets on the date of the most recent consolidated balance sheet delivered pursuant to Section 6.1(a) or (b) or - 12- |
| (ii) consolidated total revenues of the Borrower and its Subsidiaries for the period of four fiscal quarters ending on the date of the most recent consolidated balance sheet delivered pursuant to Section 6.1(a) or (b), then, in either case, the Borrower shall promptly cause such De Minimis Subsidiaries as may be selected by the Borrower to comply with the requirements of Section 6.9 (as though such Subsidiaries were not De Minimis Subsidiaries) to the extent necessary so that all De Minimis Subsidiaries that are not Subsidiary Guarantors or Specified Excluded Subsidiaries do not, in the aggregate, exceed such threshold. “Debtor Relief Laws”: the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. “Default”: any of the events specified in Section 8.1, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied. “Defaulting Lender”: subject to Section 2.21(b), any Revolving Lender that, as reasonably determined by the Administrative Agent (which determination shall, upon reasonable request by the Borrower, be made promptly by the Administrative Agent if the Administrative Agent reasonably determines the conditions set forth below apply), (a) has failed to perform any of its funding obligations hereunder, including in respect of its Revolving Loans or participations in respect of Letters of Credit or Swingline Loans, within three Business Days of the date required to be funded by it hereunder unless such obligation is the subject of a good faith dispute, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit except to the extent any such obligation is the subject of a good faith dispute, (c) has failed, within three Business Days after request by the Administrative Agent (which request the Administrative Agent shall make if reasonably requested by the Borrower), to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations except to the extent subject to a good faith dispute, 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 or Bail-In Action, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment (unless, in each case, such Revolving Lender has confirmed it will comply with its obligations hereunder and the Borrower, the Administrative Agent and each Issuing Lender is reasonably satisfied that such Revolving Lender is able to continue to perform its obligations hereunder); provided that a Lender shall not be a 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 or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. “Discharge Date”: as defined in the Guarantee and Collateral Agreement. “Disposition”: with respect to any property, any sale, lease (other than leases in the ordinary course of business, including leases of excess office space and fiber leases), sale and leaseback, assignment, conveyance, transfer or other disposition thereof, including pursuant to an exchange for other property. The terms “Dispose” and “Disposed of” shall have correlative meanings. - 13- |
| “Dollars” and “$”: dollars in lawful currency of the United States. “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Effective Yield”: at any time, the effective yield for any type of Indebtedness as determined in good faith by the Borrower (which shall take into account the interest rate provisions applicable thereof (including margins and “floors”) and be deemed to include all upfront or similar fees or original issue discount payable to all lenders providing such Indebtedness in the initial primary syndication thereof (but excluding bona fide arranger fees, commitment fees or similar fees payable in connection therewith that are not generally shared with the relevant Lenders and if, applicable, consent fees for an amendment paid generally to consenting Lenders) and, in the case of upfront fees and original issue discount, equated to interest margin based on an assumed four year weighted average life). “Equally and Ratably Secured Notes Obligations”: as defined in the Guarantee and Collateral Agreement. “Equity Interests”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all classes of membership interests in a limited liability company, any and all classes of partnership interests in a partnership and any and all other equivalent ownership interests in a Person, and any and all warrants, rights or options to purchase any of the foregoing. “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations promulgated thereunder. “Escrow Assumption”: with respect to any Incremental Term Loan that is initially established as an Escrow Incremental Term Loan, the assumption of the Escrow Borrower’s obligations with respect thereto by the Borrower pursuant to an assumption agreement in form reasonably satisfactory to the Administrative Agent. “Escrow Borrower”: a Non-Recourse Subsidiary or another Person that is not the Borrower or a Subsidiary, in each case, established to (i) borrow Escrow Incremental Term Loans (pending assumption of such Incremental Term Loans by the Borrower) or (ii) assume the obligations of the Borrower with respect to previously incurred Incremental Term Loans, in each case, that is designated in the applicable Incremental Activation Notice or assumption agreement as an Escrow Borrower and that is not engaged in any material operations and does not have any other material assets other than in connection therewith. - 14- |
| “Escrow Incremental Term Loan”: any Incremental Term Loan that either (x) is initially borrowed by an Escrow Borrower or (y) is initially borrowed by the Borrower but was subsequently converted to an Escrow Incremental Term Loans in accordance with Section 2.1(g), in each case, for so long as the Escrow Assumption with respect to such Incremental Term Loan has not occurred. “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. “Event of Default”: any of the events specified in Section 8.1, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied. “Exchange Act” means the Securities Exchange Act of 1934. “Excluded Acquired Subsidiary”: any Subsidiary that is acquired by the Borrower or its Subsidiaries to the extent that documentation governing Indebtedness of such Subsidiary existing at the time of such acquisition prohibits (including by reason of its inability to satisfy a leverage ratio or other financial covenant condition under such Indebtedness) (to the extent such prohibition was not created in contemplation of such acquisition) such Subsidiary from becoming a Subsidiary Guarantor, but only so long as such Indebtedness remains outstanding. “Existing Class”: as defined in Section 2.1(h). “Existing Credit Agreement”: as defined in the recitals hereto. “Existing Letter of Credit”: each letter of credit outstanding under the Existing Credit Agreement immediately prior to the Restatement Effective Date. “Extended Revolving Commitment”: as defined in Section 2.1(i). “Extended Term Loans”: as defined in Section 2.1(h). “Extended Term Maturity Date”: with respect to the Extended Term Loans created pursuant to any Incremental Activation Notice, the final maturity date specified in the applicable Incremental Activation Notice. “Extending Term Lender”: as defined in Section 2.1(h). “Extension Election”: as defined in Section 2.1(h). “Extension Request”: as defined in Section 2.1(h). “FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially 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 current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or official administrative practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “Federal Funds Effective Rate”: 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; - 15- |
| provided that (a) if such day is not a Business Day, the Federal Funds Effective 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 Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent. “Financial Officer”: the chief financial officer, principal accounting officer, treasurer or senior vice president – corporate finance and development of the Borrower. “Finance Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are or would be required to be classified and accounted for as a “financing lease” under FASB ASC Topic 842 or “capital lease” under FASB ASC Topic 840 (as “financing lease” and “capital lease” are defined in those FASB ASC Topics as of the Restatement Effective Date) on a balance sheet of such Person and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with FASB ASC Topic 842 or FASB ASC Topic 840, as relevant at such time. “First Lien Intercreditor Agreement”: (a) the First Lien Intercreditor Agreement, dated as of May 18, 2016, by and among the Borrower, the Guarantors, the Administrative Agent, The Bank of New York Mellon Trust Company, N.A. and each other party from time to time thereto or (b) any other agreement by and among the Administrative Agent and one or more collateral agents for the holders of First Lien Notes and/or Pre-Existing Debt (an “Other First Lien Agent”) appropriately completed and acknowledged by the Borrower and the Guarantors providing, among other customary items (as determined by the Administrative Agent in consultation with the Borrower), that (i) for so long as any Commitments, Loans, Letters of Credit, or other Obligations are outstanding under this Agreement (other than contingent obligations for which no claim has been asserted) the Administrative Agent, on behalf of the Lenders, shall have the sole right to enforce any Lien against any Collateral in which it has a perfected security interest (except that, to the extent the principal amount of First Lien Notes and/or Pre-Existing Debt exceeds the principal amount of Loans and L/C Obligations under this Agreement, such agreement may provide that the applicable Other First Lien Agent shall instead be subject to a 90 day standstill requirement with respect to such enforcement (which period shall be extended if the Administrative Agent commences enforcement against the Collateral during such period or is prohibited by any Requirement of Law from commencing such proceedings) in the event it has given notice of an event of default under the indenture or other agreement governing First Lien Notes or Pre-Existing Debt for which it is agent and (ii) distributions on account of any enforcement against the Collateral by the Administrative Agent or the Other First Lien Agent (including any distribution on account of the Collateral in any such proceeding pursuant to any Debtor Relief Laws) with respect to which each of the Administrative Agent and such Other First Lien Agent have a perfected security interest shall be on a pro rata basis (subject to customary provisions dealing with intervening Liens that are prior to the Administrative Agent’s or such Other First Lien Agent’s security interest and the unenforceability of any obligations purportedly secured by such Liens) based on the amount of the Obligations and the obligations owing under the First Lien Notes and Pre-Existing Debt, respectively. “First Lien Notes”: Indebtedness of the Borrower or a Guarantor (including any such Indebtedness (i) issued by a Person that subsequently becomes a Guarantor or (ii) issued as unsecured Indebtedness that subsequently become secured by a Lien) that were either issued or assumed by the Borrower or a Guarantor (including as a result of the guarantee of existing Indebtedness issued by a Person who was not a Guarantor at the time such Indebtedness was issued). - 16- |
| “Foreign Holding Company”: any Subsidiary of the Borrower that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries of such Subsidiary that are “controlled foreign corporations” as defined in Section 957(a) of the Code. “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic Subsidiary. “Fronting Exposure”: at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Revolving Percentage of the outstanding L/C Obligations in respect of Letters of Credit issued by such Issuing Lender other than any such L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof. “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders. “GAAP”: generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of Section 7.1 and any incurrence test hereunder, GAAP shall be determined on the basis of such principles in effect on the Amendment No. 2 Effective Date as applied in the preparation of the most recent audited financial statements delivered pursuant to Section 6.1 prior to the Amendment No. 2 Effective Date. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, incurrence tests, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes in (a) accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC, (b) the Borrower’s manner of accounting as directed or otherwise required or requested by the SEC (including such SEC changes affecting a Qualified Parent Company and applicable to the Borrower), and (c) the Borrower’s manner of accounting addressed in a preferability letter from the Borrower’s independent auditors to the Borrower (or a Qualified Parent Company and applicable to the Borrower) in order for such auditor to deliver an opinion on the Borrower’s financial statements required to be delivered pursuant to Section 6.1 without qualification. “Governmental Authority”: any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners). “Guarantee and Collateral Agreement”: the Amended and Restated Guarantee and Collateral Agreement, dated as of the Amendment No. 2 Effective Date, executed and delivered by Holdings, the Borrower, each Subsidiary Guarantor and the Administrative Agent. - 17- |
| “Guarantee Obligation”: as to any Person (the “Guaranteeing Person”), any obligation of (a) the Guaranteeing Person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the Guaranteeing Person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “Primary Obligations”) of any other third Person (the “Primary Obligor”) in any manner, whether directly or indirectly, including any obligation of the Guaranteeing Person, whether or not contingent, (i) to purchase any such Primary Obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such Primary Obligation or (2) to maintain working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Primary Obligation of the ability of the Primary Obligor to make payment of such Primary Obligation or (iv) otherwise to assure or hold harmless the owner of any such Primary Obligation against loss in respect thereof; provided, however, that the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any Guaranteeing Person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the Primary Obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such Guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such Primary Obligation and the maximum amount for which such Guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such Guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. “Guarantors”: the collective reference to Holdings and the Subsidiary Guarantors. “Hedge Agreements”: (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, caps or collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Holdings”: as defined in the preamble hereto, together with any successor thereto. “Incremental Activation Notice”: with respect to any Incremental Term Loan, Replacement Term Loan, Extended Term Loan or Extended Revolving Commitment, the agreement signed by the Borrower (or, in the case of Escrow Incremental Term Loans, the Escrow Borrower), the Administrative Agent and, in the case of any such agreement providing for Incremental Term Loans, Replacement Term Loans or Extended Revolving Commitments, the Lenders providing such Incremental Term Loans, Replacement Term Loans or Extended Revolving Commitments, in each case, providing for the terms of such Incremental Term Loans, Extended Term Loans, Extended Revolving Commitments or Replacement Term Loans in accordance with the applicable requirements of Section 2.1(g), (h), (i) or (j). - 18- |
| “Incremental Closing Date”: any Business Day designated as such in an Incremental Activation Notice. “Incremental Term Loan”: any term loan borrowed following the Restatement Effective Date pursuant to Section 2.1(g). “Incremental Term Maturity Date”: with respect to the Incremental Term Loans to be made pursuant to any Incremental Activation Notice, the final maturity date specified in such Incremental Activation Notice. “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) accrued expenses, (ii) any earnout or similar obligations so long as such obligations remain contingent and (iii) trade payables incurred in the ordinary course of such Person’s business, including, for the avoidance of doubt, vendor-related financing arrangements incurred in the ordinary course of business for goods and services) to the extent not required to be reflected as “long term debt” on a consolidated balance sheet of such Person prepared in accordance with GAAP, (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Finance Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Equity Interests of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of Sections 8.1(e) and (f) only, all obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include, without duplication, the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. - 19- |
| Notwithstanding the foregoing, the following shall not constitute Indebtedness: (i) any current or future true up payment or other payments required by the terms of any Partnership Agreement; (ii) leases classified as operating leases under ASC 842; and (iii) obligations in connection with any Permitted Securitization Financing. “Indebtedness For Borrowed Money” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all indebtedness of such Person evidenced by bonds, debentures, notes or similar instruments and (c) all Guarantee obligations of such Person with respect to indebtedness of the type described in clauses (a) and (b) above of others. The Indebtedness For Borrowed Money of any Person shall include the Indebtedness For Borrowed Money of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other contractual relationship with such entity, except to the extent the terms of such Indebtedness For Borrowed Money provide that such Person is not liable therefor. “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA. “Intercompany Obligations”: as defined in the Guarantee and Collateral Agreement. “Interest Payment Date”: (a) as to any ABR Loan (including Swingline Loans), the last Business Day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Term SOFR Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Term SOFR Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof. “Interest Period”: as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one, three or six months thereafter, as selected by the Borrower in its Notice of Borrowing, or such other period that is twelve months or less requested by the Borrower and consented to by (which consent shall not be unreasonably withheld) all the appropriate Lenders and the Administrative Agent (in the case of each requested Interest Period, subject to availability); 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 Term SOFR 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 Term SOFR 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 - 20- |
| (iii) no Interest Period shall extend beyond the applicable maturity date. “Investment”: any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or any purchase of Equity Interests, bonds, notes, debentures or other debt securities of, or any assets constituting a significant part of a business unit of, or any other investment in, any Person. “Investment Grade Rating”: is as defined in the definition of “Applicable Margin”. “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). “Issuing Lender”: Bank of America, N.A., JPMorgan Chase Bank, N.A. and any other Revolving Lender with Revolving C Commitments that has agreed in its sole discretion to act as an “Issuing Lender” hereunder and that has been approved (such approval not to be unreasonably withheld, conditioned or delayed) in writing by the Administrative Agent as an “Issuing Lender” hereunder, in each case in its capacity as issuer of any Letter of Credit. “Joint Bookrunners”: the Persons identified on the cover of this Agreement as “Joint Bookrunners” in their capacities as such (including those entities identified as such immediately prior to (xw) the Amendment No. 1 Effective Date, (x) the Amendment No. 2 Effective Date (y) the Amendment No. 25 Effective Date and (z) the Amendment No. 56 Effective Date). “Joint Lead Arrangers”: the Persons identified on the cover of this Agreement as “Joint Lead Arrangers and Joint Bookrunners” in their capacities as such (including those entities identified as such immediately prior to (xw) the Amendment No. 1 Effective Date, (x) the Amendment No. 2 Effective Date, (y) the Amendment No. 25 Effective Date and (z) the Amendment No. 56 Effective Date). “Junior Lien Intercreditor Agreement”: a customary intercreditor agreement in form reasonably satisfactory to the Administrative Agent and the Borrower pursuant to which, inter alia, any Lien that is intended to be subordinated to the Lien securing the Obligations, is so subordinated. “Laws”: collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case having the force of law. “L/C Commitment”: $1,375,000,000. “L/C Fee Payment Date”: the last day of each March, June, September and December and the last Business Day of the Revolving Commitment Period for any Class of Revolving Commitments with risk participations in Letters of Credit. “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5. “L/C Participants”: with respect to any Letter of Credit, the collective reference to all Revolving Lenders with Revolving C Commitments other than the Issuing Lender that issued such Letter of Credit. - 21- |
| “Level I Status”: is as defined in the definition of “Applicable Margin”. “Level II Status”: is as defined in the definition of “Applicable Margin”. “Lender Participation Notice”: as defined in Section 2.8(b)(iii). “Lenders”: as defined in the preamble hereto. “Lender Recipient Party” means collectively, the Lenders, the Swingline Lender and the Issuing Lenders. “Letters of Credit”: as defined in Section 3.1(a). “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any finance lease having substantially the same economic effect as any of the foregoing). “Limited Condition Acquisition”: any acquisition, including by way of merger, by the Borrower or one or more of its Subsidiaries permitted pursuant to this Agreement the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing. “Loan”: any loan made or held by any Lender pursuant to this Agreement. “Loan Documents”: this Agreement, each Incremental Activation Notice (but, in the case of an Incremental Activation Notice with respect to Escrow Incremental Term Loans, solely from and after the occurrence of the Escrow Assumption with respect to such Escrow Incremental Term Loans), the Guarantee and Collateral Agreement, the Notes, the Restatement Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 55, Amendment No. 6 and any other agreements, documents or instruments to which any Loan Party is party and which is designated as a Loan Document. “Loan Parties”: Holdings, the Borrower and each Subsidiary of the Borrower that is a party to a Loan Document. “Majority Facility Lenders”: with respect to (i) the Revolving Facility, Lenders holding more than 50% of the Total Revolving Extensions of Credit (or prior to any termination of the Total Revolving Commitments, the holders of more than 50% of the Total Revolving Commitments) and (ii) any Class of Term Loans, Lenders holding more than 50% of such Class of Term Loans. “Material Acquisition”: has the meaning set forth in Section 1.2(f). “Material Adverse Effect”: a material adverse effect on (a) the business, property, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of any material provision of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder. “Material Disposition”: has the meaning set forth in Section 1.2(f). “Maximum Tender Condition”: as defined in Section 2.23(b). - 22- |
| “Minimum Tender Condition”: as defined in Section 2.23(b). “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. “New York UCC”: the Uniform Commercial Code as from time to time in effect in the State of New York. “Non-Excluded Taxes”: as defined in Section 2.17(a). “Non-Facility Letters of Credit”: any letters of credit issued for the account of the Borrower or any of its Subsidiaries (i) by any Lender (or any Affiliate of any Lender) obtained other than pursuant to this Agreement or (ii) by any other Person from time to time designated by the Borrower in writing to the Administrative Agent (provided that it is understood and agreed that each Person designated pursuant to this clause (ii), by accepting the benefits of such designation under the Loan Documents, shall be deemed to (x) have irrevocably designated and appointed the Administrative Agent as the agent and “collateral agent” of such Person for all purposes under the applicable Loan Documents and (b) be bound by the provisions of Sections 9, 10.2, 10.5, 10.11 and 10.12 of this Agreement). “Non-Recourse Subsidiary”: any Subsidiary of the Borrower that subsequent to the Restatement Effective Date is designated in writing as a Non-Recourse Subsidiary by the Borrower pursuant to a certificate signed by a Responsible Officer of the Borrower to the Administrative Agent (which certificate shall state that the conditions to designating such Subsidiary as a Non-Recourse Subsidiary set forth in this definition are satisfied) unless and until it has subsequently been designated in writing as a “Subsidiary” by the Borrower pursuant to a certificate signed by a Responsible Officer of the Borrower to the Administrative Agent (which certificate shall state that the conditions to designating such Non-Recourse Subsidiary as a “Subsidiary” set forth in this definition are satisfied). The Borrower may designate a Subsidiary as a Non-Recourse Subsidiary only if, after giving effect thereto, (x) no Default or Event of Default would occur, (y) the Borrower and its Subsidiaries are in compliance with the Non-Recourse Subsidiary Cap and (z) such Subsidiary does not own any Equity Interests of any other Subsidiary of the Borrower (other than another Non-Recourse Subsidiary). The designation of a Subsidiary as a Non-Recourse Subsidiary shall be deemed to be an Investment by the Borrower in a Person that is not a Subsidiary in an amount equal to the fair market value of the Borrower’s and its Subsidiaries Investments in such Subsidiary at the time of such designation. The Borrower may designate a Non-Recourse Subsidiary as a Subsidiary only if, after giving effect thereto, no Default or Event of Default would occur. The designation of a Non-Recourse Subsidiary as a Subsidiary shall be deemed to be a return of Investment to the Borrower equal to the fair market value of the Non-Recourse Subsidiary so designated as Subsidiary at the time of such designation. It is understood that Non-Recourse Subsidiaries shall be disregarded for the purposes of any calculation pursuant to this Agreement relating to financial matters with respect to the Borrower (other than the Non-Recourse Subsidiary Cap). “Non-Recourse Subsidiary Cap”: as of the last day of any Test Period, Non-Recourse Subsidiaries shall not account for greater than (x) 2025% of the total assets of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date or (y) 2025% of Consolidated Operating Cash Flow, calculated in the case of this clause (y) (and notwithstanding anything in the definition thereof to the contrary including any exclusion of financial results of a Non-Recourse Subsidiary) with respect to the Borrower and its Subsidiaries on a consolidated basis, as of such date. “Non-U.S. Lender”: as defined in Section 2.17(d). - 23- |
| “Notes”: the collective reference to any promissory note evidencing Loans. “Notice of Borrowing”: an irrevocable notice of borrowing, substantially in the form of Exhibit E 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 Borrower, to be delivered in connection with each extension of credit hereunder. “Obligations”: as defined in the Guarantee and Collateral Agreement. “Offered Loans”: as defined in Section 2.8(b)(iii) “Offered Prepayment Option Notice”: as defined in Section 2.8(b)(v). “Offered Range”: as defined in Section 2.8(b)(ii). “Offered Voluntary Prepayment”: as defined in Section 2.8(b)(i). “Offered Voluntary Prepayment Notice”: as defined in Section 2.8(b)(v). “Other Taxes”: any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such taxes that are imposed with respect to an assignment (other than an assignment pursuant to Section 2.20) and which are a result of a present or former connection between such Lender and the jurisdiction of the Governmental Authority imposing such tax (other than any such connection arising solely from such Lender having executed, delivered or performed its obligations or received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, this Agreement or any other Loan Document). “Participant”: as defined in Section 10.6(c)(i). “Partnership Agreements”: (i) the Bright House Acquisition Agreement and those documents listed in the definition of “Transaction Agreements” as set forth in the Bright House Acquisition Agreement, (ii) the Tax Receivables Agreement, dated as May 18, 2016, by and among Advance/Xxxxxxxx Partnership, CCI and CCH II, LLC, as such agreement may be amended from time to time in accordance with its terms, (iii) the Amended and Restated Limited Liability Company Agreement of Charter Holdings, by and among CCI, the other Charter Member (as defined therein), Advance/Xxxxxxxx Partnership and CCH, dated as of May 18, 2016, as such agreement may be amended from time to time in accordance with its terms and (iv) similar partnership agreements (as determined by the Borrower in good faith) entered into from time to time by direct or indirect parent entities of the Borrower. “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor). - 24- |
| “Permitted Debt Exchange”: as defined in Section 2.23(a). “Permitted Debt Exchange Notes”: as defined in Section 2.23(a). “Permitted Debt Exchange Offer”: as defined in Section 2.23(a). “Permitted Securitization Financing”: any financing arrangement or factoring of Securitization Assets by the Borrower or any Subsidiary or any securitization facility of any Securitization Subsidiary of the Borrower, in each case, the obligations of which are non-recourse (except for Standard Securitization Undertakings) to the Borrower or any Subsidiary (other than any Securitization Subsidiary) in connection therewith. “Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. “Plan”: at a particular time, any employee benefit plan that is covered by Title IV of ERISA and in respect of which a Loan Party or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA. “Platform”: as defined in Section 6.1. “Pole Agreement”: any pole attachment agreement or underground conduit use agreement entered into in connection with the operation of any cable distribution system owned or acquired by the Borrower or any of its Subsidiaries which receives audio, video, digital, other broadcast signals or information or telecommunications by cable, optical, antennae, microwave or satellite transmission and which amplifies and transmits such signals to customers of the Borrower or any of its Subsidiaries. “Pre-Existing Debt”: any Indebtedness issued by any Person that subsequently becomes a Guarantor. “Prime Rate”: the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors). “Properties”: as defined in Section 4.17(a). “Proposed Offered Prepayment Amount”: as defined in Section 2.8(b)(ii). “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. “Qualified Parent Company”: CCI or any of its direct or indirect Subsidiaries, in each case provided that the Borrower shall be a direct or indirect Subsidiary of such Person. “Qualifying Lenders”: as defined in Section 2.8(b)(iv). “Qualifying Loans”: as defined in Section 2.8(b)(iv). - 25- |
| “Rating Agencies” means (1) each of Xxxxx’x, S&P and Fitch; and (2) if any of Xxxxx’x, S&P or Fitch ceases to provide a rating or fails to make a rating of CCI publicly available for reasons outside of CCI’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, as amended, selected by CCI (as certified by a resolution of CCI’s Board of Directors) as a replacement agency for Xxxxx’x, S&P or Fitch, or all, as the case may be, that is reasonably acceptable to the Administrative Agent. “Ratings Decline Period” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a transaction that, if consummated, would constitute a Change of Control and (b) the occurrence of such Change of Control and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Ratings Entity, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency. “Ratings Entity” means (i) for so long as CCI (or the other relevant entity to which the “corporate family rating” (or equivalent term) applicable to the Borrower has been assigned) directly or indirectly owns a majority of the common Equity Interests of the Borrower and has not publicly announced a specific transaction pursuant to which CCI (or such other entity specified above) would cease to own a majority of the common Equity Interests of the Borrower, CCI (or such other entity specified above) and (ii) at any time that clause (i) does not apply, any Person whose “corporate family rating” (or equivalent term) is (or following the consummation of a transaction described in clause (i), will be) determined based expressly in whole or part on the fact that the Borrower is part of such Person’s “corporate family rating” (or equivalent term). “Ratings Event” means any of the following: (i) (x) (A) in the event that the Ratings Entity is the same both before and after the commencement of the applicable Ratings Decline Period, a downgrade by one or more gradations (including gradations within ratings categories as well as between rating categories) or withdrawal of the “corporate family rating” (or equivalent term) of the Ratings Entity within the Ratings Decline Period by one or more Rating Agencies (unless the applicable Rating Agency shall have put forth a written statement to the effect that such downgrade is not attributable in whole or in part to the applicable Change of Control) or (B) in the event that the Ratings Entity immediately after the commencement of the applicable Ratings Decline Period is a Person other than the Ratings Entity immediately prior to the commencement of such Ratings Decline Period, such Ratings Entity has a “corporate family rating” (or equivalent term) lower than the “corporate family rating” (or equivalent term) of the Ratings Entity immediately prior to the commencement of such Ratings Decline Period and (y) following any such downgrade, the Ratings Entity does not have a “corporate family rating” (or equivalent term) that is an Investment Grade Rating from any Rating Agency; or (ii) the Ratings Entity does not have a “corporate family rating” (or equivalent term) of at least B1 from Xxxxx’x and at least B+ from S&P and B+ from Fitch (or the equivalent ratings in the case of any other Rating Agency), in each case, with a stable or positive outlook, at the time of the applicable Change of Control or at any time thereafter until the termination of the applicable Ratings Decline Period; or (iii) the Ratings Entity does not have a “corporate family rating” (or equivalent rating) from at least two Ratings Agencies at the time of the applicable Change of Control or at any time thereafter until the termination of the applicable Ratings Decline Period. - 26- |
| “Refinancing Term Loan”: any Incremental Term Loan that is designated as a “Refinancing Term Loan” pursuant to the applicable Incremental Activation Notice. “Refunded Swingline Loans”: as defined in Section 2.5(b). “Register”: as defined in Section 10.6(b)(iv). “Regulated Subsidiary”: any Subsidiary that is prohibited, in connection with telephony licenses issued to it, from becoming a Loan Party by reason of the requirement of consent from any Governmental Authority, but only for so long as such consent has not been obtained. “Regulation U”: Regulation U of the Board as in effect from time to time. “Reimbursement Obligation”: the obligation of the Borrower to reimburse the relevant Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit. “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”: an authorization and/or evidence of release of specified Collateral, substantially in the form of Exhibit F. “Replacement Term Loan”: any term loan borrowed following the Restatement Effective Date pursuant to Section 2.1(j). “Replacement Term Maturity Date”: with respect to the Replacement Term Loans to be made pursuant to any Incremental Activation Notice, the final maturity date specified in such Incremental Activation Notice. “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under applicable regulations. “Repricing Transaction”: (a) except in connection with a transaction constituting a Change of Control or Material Acquisition, the incurrence by the Borrower of any term loans (including, without limitation, any new or additional term loans under this Agreement) having an Effective Yield that is less than the Effective Yield for the Term B-45 Loans, the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Term B-45 Loans or (b) any effective reduction in the Effective Yield for the Term B-45 Loans by way of amendment of this Agreement. “Required Lenders”: at any time, the holders of more than 50% of the sum of (a) the aggregate unpaid principal amount of the Term Loans then outstanding and (b) the Total Revolving Commitments then in effect or, if the Total Revolving Commitments shall have expired or been terminated, the Total Revolving Extensions of Credit then outstanding; provided that this definition is subject to Section 2.14(b). “Requirement of Law”: as to any Person, the certificate of incorporation and bylaws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. - 27- |
| “Rescindable Amount” has the meaning as defined in Section 2.12(b)(ii) “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Responsible Officer”: the chief executive officer, president, chief financial officer, principal accounting officer, senior vice president – corporate finance and development, treasurer or any other financial officer of the Borrower, 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. “Restatement Agreement”: the Restatement Agreement, dated as of April 26, 2019, by and among the Loan Parties, the Administrative Agent and the other parties thereto. “Restatement Effective Date”: as defined in the Restatement Agreement. “Revolving B Commitment”: as to any Revolving Lender, the obligation of such Lender to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading “Revolving B Commitment” on Schedule 1 to the Amendment No. 2,6, in each case as the same may be changed from time to time pursuant to the terms hereof (including as a result of any Assignment and Assumption to which such Lender is a party or the establishment of any Extended Revolving Commitments). The aggregate amount of the Revolving B Commitments on the Amendment No. 6 Effective Date is $960,325,000.00. “Revolving C Commitment”: as to any Revolving Lender, the obligation of such Lender to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading “Revolving C Commitment” on Schedule 1 to the Amendment No. 6, in each case as the same may be changed from time to time pursuant to the terms hereof (including as a result of any Assignment and Assumption to which such Lender is a party or the establishment of any Extended Revolving Commitments). The aggregate amount of the Revolving BC Commitments on the Amendment No. 26 Effective Date is $5,500,000,000. 5,500,000,000.00. “Revolving Commitment”: as to any Revolving Lender, such Xxxxxx’s Revolving B Commitment, Revolving C Commitment and/or Extended Revolving Commitment, as applicable in each case as the same may be changed from time to time pursuant to the terms hereof (including as a result of any Assignment and Assumption to which such Lender is a party or the establishment of any Extended Revolving Commitments). “Revolving Commitment Period”: with respect to any Revolving Commitment, the period ending on the Revolving Termination Date for such Revolving Commitment. “Revolving Extensions of Credit”: as to any Revolving Lender at any time under any Class of Revolving Commitments, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding made pursuant to such Class of Revolving Commitments, (b) such Xxxxxx’s Revolving Percentage of the L/C Obligations in respect of each Letter of Credit then outstanding pursuant to such Revolving Commitments and (c) such Xxxxxx’s Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding under such Revolving Commitments. - 28- |
| “Revolving Facility”: the Revolving Commitments and the Revolving Extensions of Credit. “Revolving Lender”: each Lender that has a Revolving Commitment or that holds Revolving Loans or is an Issuing Lender or Swingline Lender. “Revolving Loans”: as defined in Section 2.1(ef). “Revolving Percentage”: as to any Revolving Lender with any Class of Revolving Commitments at any time, the percentage which such Xxxxxx’s Revolving Commitment of such Class then constitutes of the aggregate Revolving Commitments of such Class (or, at any time after the aggregate Revolving Commitments of such Class shall have expired or terminated, the percentage which the aggregate outstanding amount of such Xxxxxx’s Revolving Extensions of Credit under such Class of Revolving Commitments then outstanding constitutes of the aggregate outstanding amount of the Revolving Extensions of Credit made pursuant to such Class of Revolving Commitments then outstanding); provided that with respect to participations in Letters of Credit and Swingline Loans and fees and interest thereon, the Revolving Percentages shall be calculated treating all Revolving Commitments as a single Class of Revolving Commitments. In addition to adjustments pursuant to assignments, the Revolving Percentages of the Revolving Lenders shall be subject to adjustment (i) on each Revolving Termination Date, (ii) with respect to participations in Letters of Credit and Swingline Loans, as contemplated by Section 2.21, (iii) on each date on which Extended Revolving Commitments are established; provided that if any Letter of Credit (a “Later Expiring Letter of Credit”) is at any time issued and outstanding with an expiration date that is after any Revolving Termination Date for any then outstanding Revolving Commitment, then the Revolving Percentage of each Revolving Lender for purposes of calculating its Revolving Percentage of any L/C Obligations in respect of each Later Expiring Letter of Credit shall be recomputed by assuming that each Revolving Commitment with a Revolving Termination Date that is on or prior to the expiration date of such Later Expiring Letter of Credit had been terminated. “Revolving Termination Date”: (i) with respect to any Revolving B Commitment in effect on the Amendment No. 26 Effective Date, August 31, 2027, and (ii) with respect to any Revolving C Commitment in effect on the Amendment No. 6 Effective Date, March 15, 2030, and (iii) with respect to any Extended Revolving Commitment established following the Amendment No. 26 Effective Date, the date specified as such in the applicable Incremental Activation Notice. “Scheduled Unavailability Date”: as defined in Section 2.14(c)(2). “SEC”: the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority. “Secured Parties”: as defined in the Guarantee and Collateral Agreement. “Securities Act” means the Securities Act of 1933. “Securitization”: a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns, of securities which represent an interest in, or which are collateralized, in whole or in part, by the Loans. “Securitization Assets” means accounts receivable, loans, mortgages, royalties, other rights to payment, supporting obligations therefor, proceeds therefrom and other related assets customarily disposed of or pledged in connection with non-recourse receivables financings or factorings or securitization facilities (as determined in good faith by the Borrower). - 29- |
| “Securitization Subsidiary” means any Subsidiary formed by the Borrower or any of its other Subsidiaries solely for purposes of consummating any Permitted Securitization Financing and which holds no material assets other than Securitization Assets and which is engaged in no material activities other than those related to such Permitted Securitization Financing. “Series”: Incremental Term Loans, Extended Term Loans and/or Replacement Term Loans, as applicable, that are established pursuant to a single Incremental Activation Notice and provide for the same terms unless such Incremental Activation Notice provides that such Incremental Term Loans, Extended Term Loans and/or Replacement Term Loans shall be a part of a previously established Class of Term Loans. “Shell Subsidiary”: any Subsidiary of the Borrower that is a “shell” company having (a) assets (either directly or through any Subsidiary or other Equity Interests) with an aggregate value not exceeding $25,000,00050,000,000 and (b) no operations. “Significant Subsidiary”: (a) any Wholly Owned Subsidiary (or group of Wholly Owned Subsidiaries, when taken together), that would be considered a “Significant Subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and (b) in addition, with respect to the Borrower, Charter Communications Operating Capital Corp., a Delaware corporation. “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan. “SOFR”: means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator). “Solvent”: when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed or contingent, matured or unmatured, disputed or undisputed, or secured or unsecured. “Specified Cash Management Agreement”: any agreement providing for treasury, depositary or cash management services, including in connection with any automated clearing house transfers of funds and commercial card exposure, or any similar transactions between the Borrower or any of its Subsidiaries and (a) any Lender or Affiliate thereof (or any Person that was a Lender or an Affiliate of a Lender at the time any such agreement was entered into) or (b) any other Person from time to time designated by the Borrower in writing to the Administrative Agent (provided that it is understood and agreed that each Person designated pursuant to this clause (b), by accepting the benefits of such designation under the Loan Documents, shall be deemed to (x) have irrevocably designated and appointed the Administrative Agent as the agent and “collateral agent” of such Person for all purposes - 30- |
| under the applicable Loan Documents and (b) be bound by the provisions of Sections 9, 10.2, 10.5, 10.11 and 10.12 of this Agreement). “Specified Excluded Subsidiary”: (i) any Foreign Subsidiary, (ii) any Shell Subsidiary, (iii) any Excluded Acquired Subsidiary, (iv) any Regulated Subsidiary (v) any Subsidiary that (a) is prohibited by any applicable requirement of law, rule, regulation or regulatory decision of any Governmental Authority from becoming a Guarantor or granting Collateral or (b) would require governmental (including regulatory) consent, approval, license or authorization to become a Guarantor or grant Collateral unless such consent, approval, license or authorization has been received (provided that nothing herein shall create an obligation to seek any such consent, approval, license or authorization), (vi) any Subsidiary that is not a Wholly Owned Subsidiary at the time it becomes a Subsidiary (for so long as it is not a Wholly Owned Subsidiary), (vii) any Subsidiary acquired on or after the Restatement Effective Date that is prohibited from becoming a Guarantor by any contract existing on the date such Subsidiary became a Subsidiary to the extent such contract was not created in contemplation thereof, (viii) any Subsidiary that is regulated as an insurance company, (ix) any not-for-profit subsidiary, (x) any Securitization Subsidiary, (xi) any Non-Recourse Subsidiary, and (xii) any Foreign Holding Company. “Specified Hedge Agreement”: any Hedge Agreement (i) entered into by the Borrower or any of its Subsidiaries with any Person that (a) is a Lender or an Affiliate of a Lender at the time such Hedge Agreement is entered into or (b) any other Person from time to time designated by the Borrower in writing to the Administrative Agent (provided that it is understood and agreed that each Person designated pursuant to this clause (b), by accepting the benefits of such designation under the Loan Documents, shall be deemed to (x) have irrevocably designated and appointed the Administrative Agent as the agent and “collateral agent” of such Person for all purposes under the applicable Loan Documents and (b) be bound by the provisions of Sections 9, 10.2, 10.5, 10.11 and 10.12 of this Agreement) and (ii) in the case of Hedge Agreements outstanding on the date hereof, any such Hedge Agreement that was a “Specified Hedge Agreement” as defined in the Existing Credit Agreement. “Standard Securitization Undertakings” means representations, warranties, covenants (including repurchase obligations) and indemnities entered into by the Borrower or any Subsidiary of the Borrower that the Borrower has determined in good faith are customary for “non-recourse” accounts receivables financings or factoring or securitization financings. - 31- |
| “Term A-7 Additional Lender”: means each Lender identified as such in Amendment No. 6. “Term A-6 Commitment”: with respect to each Lender, the commitment of such Lender to make a Term A-6 Loan on the Amendment No. 2 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule I to Amendment No. 2. “Term A-5 Lender”: any Lender that holds a Term A-5 Loan. “Term A-6 Lender”: any Lender that holds a Term A-6 Loan. “Term A-7 Lender”: any Lender that holds a Term A-7 Loan. “Term A-5 Loan”: each loan designated as a “Term A-5 Loan” made on the Amendment No. 2 Effective Date. “Term A-5 Loan”: as defined in Section 2.1(c)(2).6 Loan”: each loan designated as a “Term A-6 Loan” made on the Amendment No. 2 Effective Date.. “Term A-67 Loan”: as defined in Section 2.1(c)(34). “Term A-5 Maturity Date:” August 31, 2027. “Term A-6 Maturity Date:” August 31, 2028. “Term B Lender”: any Lender that holds a Term B Loan.A-7 Maturity Date: March 15, 2030. “Term B Loan” as defined in the Existing Credit Agreement. “Term B-1 Additional Commitment”: with respect to each Lender, the commitment of such Lender to make a Term B-1 Loan on the Amendment No. 1 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule I to Amendment No. 1. “Term B-1 Lender”: any Lender that holds a Term B-1 Loan. “Term B-1 Loan”: as defined in Section 2.1(d)(1). “Term B-1 Maturity Date”: April 30, 2025. “Term B-2 Additional Commitment”: with respect to each Lender, the commitment of such Lender to make a Term B-2 Loan on the Amendment No. 1 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule I to Amendment No. 1. “Term B-2 Lender”: any Lender that holds a Term B-2 Loan. “Term B-2 Loan”: as defined in Section 2.1(d)(2). each loan designated as a “Term B-2 Loan” made on the Amendment No. 1 Effective Date. “Term B-2 Maturity Date”: February 1, 2027. “Term B-3 Commitment”: with respect to each Lender, the commitment of such Lender to make a Term B-3 Loan on the Amendment No. 4 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule A to Amendment No. 4. - 33- |
| “Term B-3 Lender”: any Lender that holds a Term B-3 Loan. “Term B-3 Loan”: as defined in Section 2.1(d)(3).each loan designated as a “Term B-3 Loan” made on the Amendment No. 4 Effective Date. “Term B-3 Maturity Date”: March 31, 2030. “Term B-4 Additional Commitment”: with respect to each Lender, the commitment of such Lender to make a Term B-4 Loan on the Amendment No. 5 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule I to Amendment No. 5. “Term B-4 Additional Lender”: means each Lender identified as such in Amendment No. 5. “Term B-4 Lender”: any Lender that holds a Term B-4 Loan. “Term B-4 Loan”: as defined in Section 2.1(d)(4). each loan designated as a “Term B-4 Loan” made on the Amendment No. 5 Effective Date. “Term B-4 Maturity Date”: December 7, 2030. “Term Lender”: any Lender that holds a Term Loan.B-5 Additional Commitment”: with respect to each Lender, the commitment of such Lender to make a Term B-5 Loan on the Amendment No. 6 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Xxxxxx’s name on Schedule I to Amendment No. 6. “Term B-5 Additional Lender”: means each Lender identified as such in Amendment No. 6. “Term B-5 Lender”: any Lender that holds a Term B-5 Loan. “Term B-5 Loan”: as defined in Section 2.1(d)(5). “Term B-5 Maturity Date”: December 15, 2031. “Term Lender”: any Lender that holds a Term Loan. “Term Loan”: Term A-5 Loan, Term A-6 Loan, Term BTerm A-7 Loan, Term B-1 Loan, Term B-2 Loan, Term B-3 Loan, Term B-4 Loan, Term B-5 Loan, Extended Term Loan, Replacement Term Loan or Incremental Term Loan; provided that no Escrow Incremental Term Loan shall be deemed to be a Term Loan outstanding hereunder until the Escrow Assumption with respect thereto shall have occurred. “Term Maturity Date”: with respect to: (i) the Term A-5 Loans, the Term A-5 Maturity Date, (ii) the Term A-6 Loans, the Term A-6 Maturity Date, (i) (iii) the Term BA-15 Loans, the Term BA-15 Maturity Date, (ii) the Term A-6 Loans, the Term A-6 Maturity Date, (iii) the Term A-7 Loans, the Term A-7 Maturity Date, - 34- |
| (iv) the Term B-2 Loans, the Term B-2 Maturity Date, (v) the Term B-3 Loans, the Term B-3 Maturity Date, (vi) the Term B-4 Loans, the Term B-4 Maturity Date, (vii) the Term B-5 Loans, the Term B-5 Maturity Date, (viii) the Incremental Term Loans of any other Series, the Incremental Term Maturity Date for such Series, (ix) (viii) the Extended Term Loans of any Series, the Extended Term Maturity Date for such Series and (x) (ix) the Replacement Term Loans of any Series, the Replacement Term Maturity Date for such Series. “Term SOFR” means, for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, for such Interest Period. “Term SOFR Loan” means a Loan that bears interest at a rate based on the definition of Term SOFR. “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time). “Term SOFR Tranche”: the collective reference to Term SOFR Loans of a particular Class, the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). “Threshold Amount”: $2,500,000,000.5,000,000,000. “Total Assets”: the total assets of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Borrower delivered pursuant to Section 6.1(a) or (b). “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving Commitments then in effect. “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit outstanding at such time. “Transferee”: any Assignee or Participant. “Type”: as to any Loan, its nature as an ABR Loan or a Term SOFR Loan. - 35- |
| (c) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of the Application or an amendment related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. (d) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. (e) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. (f) For the purposes of calculating Annualized Operating Cash Flow and Consolidated Operating Cash Flow for any period (a “Test Period”), (i) if at any time during the period (a “Pro Forma Period”) commencing on the second day of such Test Period and ending on the last day of such Test Period (or, in the case of any pro forma calculation made pursuant hereto in respect of a particular transaction, ending on the date such transaction is consummated and, unless otherwise expressly provided herein, after giving effect thereto), the Borrower or any Subsidiary shall have made any Material Acquisition or Material Disposition or (ii) if, during such Pro Forma Period, the Borrower or any Subsidiary shall have made any Disposition (other than a Material Disposition) or Acquisition (other than a Material Acquisition), at the option of the Borrower (in the case of this clause (ii)), in each case of clauses (f)(i) or (ii), the Consolidated Operating Cash Flow for such Test Period shall be revised by an amount equal to the Consolidated Operating Cash Flow, as applicable, attributable to the property which is the subject of such Acquisition or Disposition for such Test Period. For the purposes of this paragraph, pro forma calculations regarding the amount of income or earnings relating to any Disposition or Acquisition shall in each case be determined in good faith by a Responsible Officer of the Borrower. As used in this Section 1.2(f), “Acquisition” means any acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the Equity Interests of a Person, “Material Acquisition” means an Acquisition that involves the payment of Consideration by the Borrower and its Subsidiaries in excess of $1,000,000,000.00; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $1,000,000,000.00. (g) For avoidance of doubt, in order to determine pursuant to any provision of Section 7 that no Default or Event of Default results from a particular transaction, pro forma compliance with Section 7.1 shall be required.[Reserved]. (h) All Loans, Letters of Credit and accrued and unpaid amounts (including interest and fees) owing by the Borrower to any Person under the Existing Credit Agreement that have not been paid to such Persons on or prior to the Amendment No. 26 Effective Date shall continue as Loans, Letters of Credit and accrued and unpaid amounts hereunder on the Amendment No. 26 Effective Date and shall be payable on the dates such amounts would have been payable pursuant to the Existing Credit Agreement, and from and after the Amendment No. 26 Effective Date, interest, fees and other amounts shall accrue as provided under this Agreement. - 37- |
| avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service. SECTION 2 AMOUNT AND TERMS OF COMMITMENTS 2.1. Loans and Commitments. (a) [Reserved]. (b) [Reserved]. (c) (1) [Reserved]. (2) [Reserved]. (3) [Reserved]. (4) (2) Subject to the terms and conditions hereof, (i) each Term A-7 Additional Lender with a Term A-5 Additional Commitment severallyTerm A-7 Additional Commitment agrees to make a loanloan in Dollars (each, a “Term A-57 Loan”; which term shall include each loanloan converted from a Converted Second Amendment Term A LoanConverted Term A-5 Loan pursuant to subclause (ii) below) on the Amendment No. 2 Effective DateAmendment No. 6 Effective Date in an amount equal to its Term A-5 Additional Commitment and (ii) each Converted Second Amendment Term A Loan of each Lender that has indicated on its counterpart its election to convert its Converted Second Amendment Term A Loan to a Term A-5 LoanTerm A-7 Additional Commitment and (ii) the Converted Term A-5 Loan of each Converting Consenting Term A-5 Lender shall be converted into a Term A-5 Loan of such LenderTerm A-7 Loan of such Lender in the same principal amount as such Converted Second Amendment Term A Loan on the Amendment No. 2 Effective Date. Converted Term A-5 Loan on the Amendment No. 6 Effective Date. (d) (1) [Reserved] - 39- |
| from time to time be Term SOFR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.10. (4) Subject to the terms and conditions hereof, (i) each Term B-4 Additional Lender with a Term B-4 Additional Commitment agrees to make a loan in Dollars (each, a “Term B-4 Loan”; which term shall include each loan converted from a Converted Fifth Amendment Term B-1 Loan pursuant to subclause (ii) below) on the Amendment No. 5 Effective Date in an amount equal to its Term B-4 Additional Commitment and (ii) the Converted Fifth Amendment Term B-1 Loan of each Converting Consenting Fifth Amendment Term B-4 Lender shall be converted into a Term B-4 Loan of such Lender in the same principal amount as its Converted Fifth Amendment Term B-1 Loan . The Term B-4 Loans may from time to time be Term SOFR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.10. (e) [Reserved](f) Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans in Dollars ( the “Revolving Loans”) to the Borrower from time to time during the applicable Revolving Commitment Period with respect to such Xxxxxx’s Revolving Commitment of each Class in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of such Class of Revolving Commitments of the sum of (A) the L/C Obligations then outstanding with respect to each Letter of Credit and (B) the aggregate principal amount of the Swingline Loans then outstanding, does not exceed the amount of such Xxxxxx’s Revolving Commitment of such Class. During the Revolving Commitment Period for any Revolving Commitment, the Borrower may use such Revolving Commitment by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be Term SOFR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.10. (g) (1) Following the Restatement Effective Date, the Borrower (or, in the case of Escrow Incremental Term Loans, the Escrow Borrower) and any one or more Lenders (including Persons that become Lenders in connection therewith) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, (v) the Applicable Margin for such Incremental Term Loans and any prepayment premiums or call protection applicable thereto, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) whether, if applicable, such Incremental Term Loans constitute Refinancing Term Loans or Escrow Incremental Term Loans, - 41- |
| (viii) [reserved], and (ix) any other terms and conditions that will apply to such Incremental Term Loans. (2) Notwithstanding the foregoing, without the consent of the Required Lenders, (i) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (ii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations”, the definition of “Required Lenders” or Section 8 or Section 10.1 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Subsidiary Guarantor, in each case, unless and until the Escrow Assumption with respect thereto has occurred. (3) No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (4) With the consent of the Borrower and each of the Lenders with any Class of then outstanding Incremental Term Loans and pursuant to an assumption agreement reasonably satisfactory to the Administrative Agent, an Escrow Borrower may assume all obligations of the Borrower with respect to such Class of Term Loans (including with respect to the full principal amount thereof and all accrued and unpaid interest and other amounts owing with respect thereto), in which case, such Class of Incremental Term Loans shall thereafter be deemed to not be outstanding for purposes of this Agreement or any other Loan Document and shall be Escrow Incremental Term Loans until such time, if any, as an Escrow Assumption with respect thereto has occurred, at which time any such Escrow Incremental Term Loans that accrued interest at a rate based on Term SOFR immediately prior to such Escrow Assumption shall constitute a Term SOFR Tranche with an initial Interest Period equal to the then unexpired interest period applicable thereto immediately prior to such Escrow Assumption. (5) Notwithstanding the foregoing, with the consent of the holders of any Pre-Existing Debt and the Borrower, such Pre-Existing Debt may, pursuant to an Incremental Activation Notice, be deemed to have been issued as Incremental Term Loans under this Agreement on the date of effectiveness of such Incremental Activation Notice and thereafter, the terms of such Pre-Existing Debt shall be governed by the terms of this Agreement (as modified by the applicable Incremental Activation Notice). (6) To the extent provided in the relevant Incremental Activation Notice with respect to any Refinancing Term Loans, any portion of the Term Loans that would otherwise be repaid from the net proceeds of such Refinancing Term Loans may be converted on a “cashless roll” basis into such Refinancing Term Loans if agreed to by each Lender holding the Term Loans that are so converted. (h) (1) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Class”) be converted to extend the scheduled maturity date(s) of any payment or payments of principal (including at final maturity) with respect to - 42- |
| such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.1(h). In order to establish a Series of Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the applicable Existing Class) (an “Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical in all material respects to the Term Loans under the Existing Class from which such Extended Term Loans are to be converted except that: (i) all or any of the scheduled amortization payments of principal and payment at maturity of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal and payment at maturity of the Term Loans of such Existing Class to the extent provided in the applicable Incremental Activation Notice, (ii) the Applicable Margins with respect to the Extended Term Loans may be different than the Applicable Margins for the Term Loans of such Existing Class and upfront fees may be paid to the Extending Term Lenders, in each case, to the extent provided in the applicable Incremental Activation Notice, (iii) [reserved]; and (iv) the Incremental Activation Notice may provide for any other covenants and terms. (2) The Borrowers shall provide the applicable Extension Request at least five (5) Business Days prior to the date on which Lenders are requested to respond. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Class converted into Extended Term Loans pursuant to any Extension Request. (3) Any Lender (an “Extending Term Lender”) wishing to have all or a portion of its Term Loans of the applicable Existing Class subject to such Extension Request converted into Extended Term Loans shall notify the Administrative Agent in writing (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans of the applicable Existing Class which it has elected to request be converted into Extended Term Loans (subject to any minimum denomination requirements reasonably imposed by the Administrative Agent). In the event that the aggregate amount of Term Loans of the applicable Existing Class subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans of the applicable Existing Class subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Term Loans of the applicable Existing Class included in each such Extension Election. The final terms of the Extended Term Loans (which shall be consistent with the Extension Request) and the allocations of the Extended Term Loans among the Extending Term Lenders shall be as set forth in the applicable Incremental Activation Notice entered into by the Borrower and the Administrative Agent. Each Extending Term Lender’s Extension Election shall be deemed to be an authorization for the Administrative Agent and the Borrower to enter into such Incremental Activation Notice in accordance with the requirements set forth above in this Section 2.1(h) and to bind such Extending Term Lender thereby. (i) (1) The Borrower and any one or more Lenders (including Persons that become Lenders in connection therewith) may from time to time agree that such Lenders will establish Revolving Commitments through (A) the provision of a new Revolving Commitment by any such Lender or (B) the conversion of a previously established Revolving Commitment of any such Lender to such Extended - 43- |
| Revolving Commitment of such Lender (any Revolving Commitments being established pursuant to clause (A) or (B) above and in accordance with this Section 2.1(i), an “Extended Revolving Commitment”, which for the avoidance of doubt, shall also be a “Revolving Commitment”), in each case, by executing and delivering to the Administrative Agent an Incremental Activation Notice specifying: (i) the amount of Extended Revolving Commitments established thereby and whether such Extended Revolving Commitments are being established pursuant to clause (A) or (B) of the foregoing sentence, (ii) the Revolving Termination Date for such Extended Revolving Commitments and (iii) the Applicable Margin for Revolving Loans and fees in respect of participations in Letters of Credit pursuant to such Extended Revolving Commitments and the Commitment Fee Rate for commitment fees payable with respect to such Extended Revolving Commitments. (2) No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. The consent of the Administrative Agent and each Issuing Lender (such consents not to be unreasonably withheld, conditioned or delayed) shall be required with respect to each Lender providing an Extended Revolving Commitment to the extent such Lender is not already a Revolving Lender that is not a Defaulting Lender. On each date on which Extended Revolving Commitments are established, each Revolving Lender shall purchase at par from and/or sell at par to each of the other Revolving Lenders such portions of the outstanding Revolving Loans, if any, as may be specified by the Administrative Agent so that, immediately following such purchases, all Term SOFR Tranches of Revolving Loans and all ABR Loans that are Revolving Loans shall be held by the Revolving Lenders on a pro rata basis in accordance with their respective Revolving Percentages. Notwithstanding the foregoing, with the consent of the holders of any revolving commitments under which Pre-Existing Debt may be borrowed, the Borrower, the Administrative Agent, the Swingline Lender and each Issuing Lender (to the extent the consent of the Administrative Agent, Swingline Lender and Issuing Lender would be required for an assignment to any such holder, each such consent not to be unreasonably withheld), such revolving commitments may, pursuant to an Incremental Activation Notice, be deemed to have been issued as Extended Revolving Commitments under this Agreement on the date of effectiveness of such Incremental Activation Notice so long as the Extended Revolving Commitments resulting therefrom comply with the requirements set forth above that are applicable to Extended Revolving Commitments and thereafter, the terms of such Pre-Existing Debt shall be governed by the terms of this Agreement (as modified by the applicable Incremental Activation Notice). (j) (1) The Borrower and any one or more Lenders (including Persons that become Lenders in connection therewith) may from time to time agree that such Lenders shall make Replacement Term Loans (which Replacement Term Loans may, at the election of the Borrower and the applicable Lenders, be made in the form of a conversion of Term Loans of an existing Class into such Replacement Term Loans) in order to replace in full or in part any Class of then outstanding Term Loans by executing and delivering to the Administrative Agent an Incremental Activation Notice specifying: (i) the amount of such Replacement Term Loans, (ii) the date on which such Replacement Term Loans will be made, - 44- |
| payment) and (ii) in the case of the last such installment (which shall be due on the Term A-6 Maturity Date), the remaining principal balance of such Term A-6 Loans outstanding on such date. (g) The Term A-7 Loans of each Term A-7 Lender shall mature in 21 installments following the Amendment No. 6 Effective Date (each due on the last day of each calendar quarter, except for such last installment), commencing on March 31, 2025, each of which shall be in an amount equal to (i) in the case of the first 20 such remaining installments, $56,745,937.50 (it being understood that, in addition to reductions resulting from optional prepayments in accordance with Section 2.8, the aggregate principal amount of amortization payable by the Borrower with respect to all Term A-7 Loans on any such date shall be reduced proportionately as a result of any conversion of Term A-7 Loans to Extended Term Loans following the Amendment No. 6 Effective Date and prior to the date of such payment) and (ii) in the case of the last such installment (which shall be due on the Term A-7 Maturity Date), the remaining principal balance of such Term A-7 Loans outstanding on such date. (h) [Reserved] (i) (g) The Term B-12 Loans of each Term B-12 Lender shall mature in 2330 installments following the Amendment No. 1 Effective Date (each due on the last day of each calendar quarter, except for such last installment), commencing on December 31, 2019, each of which shall be in an amount equal to (i) in the case of the first 2229 such remaining installments, $6,171,209.479,533,974.20 (it being understood that, in addition to reductions resulting from optional prepayments in accordance with Section 2.8, (x) the aggregate principal amount of amortization payable by the Borrower with respect to all Term B-12 Loans on any such date shall be reduced proportionately as a result of any conversion of Term B-12 Loans to Extended Term Loans following the Amendment No. 1 Effective Date and prior to the date of such payment, (y) effective as of the Amendment No. 4 Effective Date, such remaining installments shall be reduced to $6,115,907.71 to give effect to the agreement in Section 1(c) of Amendment No. 4 and (z) effective as of the Amendment No. 5 Effective Date, such remaining installments shall be reduced to $840,120.20 to give effect to the Amendment No. 5 Term B-1 Loan Prepayment) and (ii) in the case of the last such installment (which shall be due on the Term B-1 Maturity Date), the remaining principal balance of such Term B-1 Loans outstanding on such date.(h) The Term B-2 Loans of each Term B-2 Lender shall mature in 30 installments following the Amendment No. 1 Effective Date (each due on the last day of each calendar quarter, except for such last installment), commencing on December 31, 2019, each of which shall be in an amount equal to (i) in the case of the first 29 such remaining installments, $9,533,974.20 (it being understood that, in addition to reductions resulting from optional prepayments in accordance with Section 2.8, (x) the aggregate principal amount of amortization payable by the Borrower with respect to all Term B-2 Loans on any such date shall be reduced proportionately as a result of any conversion of Term B-2 Loans to Extended Term Loans following the Amendment No. 1 Effective Date and prior to the date of such payment and (y) effective as of the Amendment No. 4 Effective Date, such remaining installments shall be reduced to $8,036,305.19 to give effect to the agreement in Section 1(c) of Amendment No. 44, and (z) effective as of the Amendment No. 6 Effective Date, such remaining installments shall be reduced to $0.00 to give effect to Amendment No. 6) and (ii) in the case of the last such installment (which shall be due on the Term B-2 Maturity Date), the remaining principal balance of such Term B-2 Loans outstanding on such date. (j) (i) The Term B-3 Loans of each Term B-3 Lender shall mature in 28 installments following the Amendment No. 4 Effective Date (each due on the last day of each calendar quarter, except for such last installment), commencing on June 30, 2023, each of which shall be in an amount equal to (i) in the case of the first 27 such remaining installments, $1,875,000.00 (it being understood that, in addition to reductions resulting from optional prepayments in accordance with Section 2.8, the aggregate principal amount of amortization payable by the Borrower with respect to all Term B-3 Loans on any - 47- |
| (x) through open-market or other privately negotiated purchases (provided that (1) such Term Loans shall be deemed to be automatically and permanently cancelled and no longer outstanding upon such prepayment, and (2) the Borrower shall have provided notice thereof in such form as may be approved by the Administrative Agent to the Administrative Agent substantially concurrently with such prepayment), (y) by purchasing directly from Lenders at the Borrower’s sole discretion pursuant to Section 10.6(g) or (yz) pursuant to the procedures described in this Section 2.8(b) (each prepayment pursuant to clause (y) or (z), an “Offered Voluntary Prepayment”); provided that: (A) no Offered Voluntary Prepayment may be made if a Default or Event of Default has occurred and is continuing; (B) (x) for the avoidance of doubt, any Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(xy) may be offered to any Lender with Term Loans of the Class selected by the Borrower on a non-pro rata basis and (y) any Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) shall be offered to all Lenders with Term Loans of the Class selected by the Borrower on a pro rata basis; and (C) the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower stating that (1) no Default or Event of Default has occurred and is continuing or would result from such Offered Voluntary Prepayment and (2) each of the conditions to such Offered Voluntary Prepayment contained in this Section 2.8(b) has been satisfied. (ii) To the extent the Borrower seeks to make an Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz), the Borrower will provide written notice from a Responsible Officer of the Borrower to the Administrative Agent (each, an “Offered Prepayment Option Notice”) that the Borrower desires to prepay Term Loans of a specified Class in an aggregate principal amount specified therein by the Borrower (each, a “Proposed Offered Prepayment Amount”). The Proposed Offered Prepayment Amount shall not be less than $25,000,000 (or such lesser amount if the Term Loans of such specified Class have a lower aggregate amount outstanding at such time). The Offered Prepayment Option Notice shall further specify with respect to the proposed Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz): (A) the Proposed Offered Prepayment Amount for Term Loans and the Class of Term Loans with respect to such offer is being made, (B) an offered prepayment price range (which may be a single percentage) selected by the Borrower with respect to such proposed Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) equal to a percentage of par of the principal amount of Term Loans of the applicable Class (the “Offered Range”) and (C) the date by which Lenders are required to indicate their election to participate in such proposed Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) (the “Acceptance Date”) which shall be at least five Business Days following the date of such Offered Prepayment Option Notice is delivered. (iii) Upon receipt of an Offered Prepayment Option Notice, the Administrative Agent shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such Lender may specify by written notice in form reasonably satisfactory to the Administrative Agent (each, a “Lender Participation Notice”; it being understood that a Lender may deliver more than one Lender Participation Notice, and that each such Lender Participation Notice of such Lender shall constitute an independent and unconditional offer, and no such Lender Participation Notice may be contingent on the making of any prepayment with respect to the Offered Loans in respect of any other Lender Participation - 53- |
| Notice, or otherwise be contingent or conditional in any way) to the Administrative Agent (A) a minimum price (the “Acceptable Price”) within the Offered Range at which such Lender is willing to accept a prepayment of a portion of its Term Loans of the applicable Class and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of Term Loans of such Class held by such Lender with respect to which such Lender is willing to permit an Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) at the Acceptable Price (“Offered Loans”). Based on the Acceptable Prices and principal amounts of Term Loans of the applicable Class specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Borrower, shall determine the applicable prepayment price for Term Loans pursuant to such Offered Voluntary Prepayment (the “Applicable Price”), which Applicable Price shall be (A) the percentage specified by the Borrower if the Borrower has selected a single percentage pursuant to Section 2.8(b)(ii) for the Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) or (B) otherwise, the lowest Acceptable Price at which the Borrower can pay the Proposed Offered Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Offered Prepayment Amount cannot be repaid in full at any Acceptable Price, the Applicable Price shall be the highest Acceptable Price specified by the Lenders that is within the Offered Range. The Applicable Price shall be applicable for all Lenders who have offered to participate in the Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) and have Qualifying Loans (as defined below). Any Lender with outstanding Loans whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept an Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) of any of its Loans at the Applicable Price. (iv) The Borrower shall make an Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) by prepaying those Term Loans (or the respective portions thereof) of the applicable Class offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Price that is equal to or less than the Applicable Price (“Qualifying Loans”) at the Applicable Price; provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Offered Prepayment Amount, such amounts in each case calculated by applying the Applicable Price, the Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Offered Prepayment Amount, such amounts in each case calculated by applying the Applicable Price, the Borrower shall prepay all Qualifying Loans. (v) Each Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) shall be made within five Business Days of the Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Price and determine the amount and holders of Qualifying Loans), without premium or penalty (and not subject to Section 2.18), upon irrevocable notice (each an “Offered Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 1:00 P.M., New York City time, three Business Days prior to the date of such Offered Voluntary Prepayment, which notice shall specify the date and amount of the Offered Voluntary Prepayment pursuant to Section 2.8(b)(i)(yz) and the Applicable Price determined by the Administrative Agent. Upon receipt of any Offered Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Offered Voluntary Prepayment Notice is given, the - 54- |
| Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that: (1) adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (2) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a date and time determined by the Administrative Agent and the Borrower (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate). If the Successor Rate is Daily Simple SOFR, all interest payments will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 2.14(c)(1) or (2) have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 2.14(c) at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders - 58- |
| (a) If any Change in Law: (i) shall subject any Lender (including any Issuing Lender) to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any Application or any Term SOFR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.17, Other Taxes, and taxes for which a Lender would have been entitled to an additional payment pursuant to Section 2.17(a) but for an exclusion set forth therein); (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Term SOFR hereunder; or (iii) shall impose on such Lender or Issuing Lender any other condition; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Lender, by an amount that such Lender or Issuing Lender deems to be material, of making, converting into, continuing or maintaining Term SOFR Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or Issuing Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. The Borrower shall not be required to compensate any Lender for any claim of increased costs to such Lender of agreeing to make or making, funding or maintaining any Loans from the adoption of an alternate rate of interest pursuant to Section 2.14. If any Lender or Issuing Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled. (b) If any Lender or Issuing Lender shall have determined that any Change in Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender therewith shall have the effect of reducing the rate of return on such Lender’s or Issuing Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or Issuing Lender or such corporation could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Lender to be material, then from time to time, after submission by such Lender or Issuing Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or Issuing Lender for such reduction; provided that the Borrower shall not be required to compensate a Lender or Issuing Lender pursuant to this paragraph for any amounts incurred more than six months prior to the date that such Lender or Issuing Lender notifies the Borrower of such Xxxxxx’s or Issuing Lender’s intention to claim compensation therefor; and provided further that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. (c) A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender or Issuing Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. The obligations of the Borrower pursuant to this - 61- |
| imposed or asserted on or attributable to amounts payable under this Section 2.17), interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (d) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN (or W-8BEN-E) or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit C and a Form W-8BEN (or W-8BEN-E), or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Xxx-X.X. Xxxxxx claiming complete exemption from U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). The inability of a Non-U.S. Lender (or a Transferee) to deliver any form pursuant to this Section 2.17(d) as a result of a change in law after the date such Lender (or a Transferee) becomes a Lender (or a Transferee) hereunder or as a result of a change in circumstances of the Borrower or the use of proceeds of such Lender’s (or Transferee’s) Loans shall not constitute a failure to comply with this Section 2.17(d) and accordingly the indemnities to which such Person is entitled pursuant to this Section 2.17 shall not be affected as a result of such inability. If a Lender (or Transferee) as to which the preceding sentence does not apply is unable to deliver any form pursuant to this Section 2.17(d), the sole consequence of such failure to deliver as a result of such inability shall be that the indemnity described in Section 2.17(a) hereof for any Non-Excluded Taxes shall not be available to such Lender or Transferee with respect to the period that would otherwise be covered by such form. Each Lender (or Transferee) that is a “U.S. Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of U.S. Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax. On or before the Administrative Agent becomes a party to this Agreement, the Administrative Agent shall provide to the Borrower two copies of the documentation prescribed in clause (i) or (ii), as applicable: (i) U.S. Internal Revenue Service Form W-9 or (ii), with respect to payments received on its own behalf, IRS Form W-8ECI and, with respect to payments received on account of any Lender, a U.S. federal branch withholding certificate on U.S. Internal Revenue Service Form W-8IMY evidencing it is either (a) a “qualified intermediary” assuming primary withholding responsibility under Chapters 3 and 4 of the Code and primary Form 1099 reporting and backup withholding responsibility for payments it receives for the account of others, or (b) a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of a trade or business in the United States, and that it is using such form as evidence of its agreement to be treated as a U.S. Person for federal withholding purposes(and the Borrower and the Administrative Agent agree to so treat the Administrative Agent as a U.S. person with respect to such payments as contemplated by Treasury Regulations Section 1.1441-1(b)(2)(iv)(A)); provided that no - 63- |
| Administrative Agent shall be required to deliver any documentation pursuant to this Section 2.17(d) that it is not legally eligible to deliver as a result of a Change in Law occurring after the date hereof. (e) A Lender that is entitled to an exemption from non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Xxxxxx’s judgment such completion, execution or submission would not materially prejudice the legal position of such Lender. (f) Any Lender (or Transferee) claiming any indemnity payment or additional amounts payable pursuant to Section 2.17(a) shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Borrower if the making of such a filing would avoid the need for or reduce the amount of any such indemnity payment or additional amounts that may thereafter accrue. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments (including additional amounts) made under this Section with respect to the taxes giving rise to such refund), net of all out-of-pocket expenses (including taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its taxes that it deems confidential) to the indemnifying party or any other Person. (g) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. - 64- |
| (A) first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; (B) second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each Issuing Lender and Swingline Lender hereunder; (C) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swingline Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swingline Loan or Letter of Credit based upon the Fronting Exposure arising from that Defaulting Lender; (D) fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Revolving Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; (E) fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Revolving Loans under this Agreement; (F) sixth, to the payment of any amounts owing to the Lenders, the Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; (G) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and (H) eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or any unreimbursed drawing under any Letter of Credit in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or Letters of Credit were issued at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and unreimbursed drawings under Letters of Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or unreimbursed drawings under Letters of Credit owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21(a)(i) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto. - 67- |
| Term Loans which exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying a maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of all Classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered; (v) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Borrower and the Administrative Agent; and (vi) any applicable Minimum Tender Condition or Maximum Tender Condition, as the case may be, shall be satisfied or waived by the Borrower. Notwithstanding anything to the contrary herein, no Lender shall have any obligation to agree to have any of its Loans or Commitments exchanged pursuant to any Permitted Debt Exchange Offer. (b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.17, such Permitted Debt Exchange Offer shall be made for not less than $25,000,000 in aggregate principal amount of Term Loans, provided that subject to the foregoing the Borrower may at its election specify (A) as a condition (a “Minimum Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be tendered and/or (B) as a condition (a “Maximum Tender Condition”) to consummating any such Permitted Debt Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes will be accepted for exchange. The Administrative Agent and the Lenders hereby acknowledge and agree that the provisions of Section 2.1(g), 2.7, 2.8 and 2.15 do not apply to the Permitted Debt Exchange and the other transactions contemplated by this Section 2.23 and hereby agree not to assert any Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange or any other transaction contemplated by this Section 2.23 provided that such implementations or such other transactions are transactions are effectual in accordance with this Section 2.23. (c) In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Section 2.23; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five (5) Business Days following the - 70- |
| above for such period, supplemental financial information necessary to eliminate the balance sheet and financial results of Non-Recourse Subsidiaries from such consolidated financial statements. All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods except as approved by such accountants or officer, as the case may be, and disclosed therein. Notwithstanding the foregoing, so long as any Person directly or indirectly owns more than 50% of the outstanding common Equity Interests of the Borrower, the obligations set forth in Section 6.1(a), (b) and (c) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the applicable financial information of such Person; provided that to the extent financial information of such Person is provided, such financial information is accompanied by (x) any summarized financial information required by Regulation S-X under the Securities Act and (y) a brief explanation of the material differences between the financial statements of such Person and that of the Borrower and (ii) to the extent financial statements of such Person are provided in lieu of financial statements of the Borrower under Section 6.1(a), such financial statements are reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by independent certified public accountants of nationally recognized standing (other than an emphasis of matter paragraph) (other than (1) solely with respect to, or expressly resulting solely from, an upcoming maturity date under the documentation governing any Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Non-Recourse Subsidiaries or (3) any actual or prospective breach of any financial covenant contained in any Indebtedness (including under Section 7.1)). Documents required to be delivered pursuant to Section 6.1(a), (b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.2; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or filed with the SEC on Form 10-K or 10-Q, as applicable. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent the other Agents, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws, provided, however, that to the extent such Borrower Materials constitute non-public information, they shall be treated as set forth in Section 10.15); (y) all Borrower Materials marked - 80- |
| (d) deposits made to secure the performance of bids, tenders, trade contracts, leases, statutory or regulatory obligations, surety and appeal bonds, bankers acceptances, government contracts, performance bonds and other obligations of a like nature incurred in the ordinary course of business, in each case excluding obligations for borrowed money; (e) easements, rights-of-way, municipal and zoning ordinances, title defects, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Holdings, the Borrower or any of its Subsidiaries; (f) (i) Liens securing Indebtedness of the Borrower or any of its Subsidiaries incurred to finance the acquisition of, construction of or improvement of fixed or capital assets in a principal amount not exceeding 110% of the cost of such acquisition, construction or improvement and (ii) Liens affecting property of a Person (other than a Non-Recourse Subsidiary) existing at the time it becomes a Subsidiary of the Borrower or at the time it merges into or consolidates with the Borrower or a Subsidiary of the Borrower or at the time of a sale, lease or other disposition of all or substantially all of the properties of such Person (other than a Non-Recourse Subsidiary) to the Borrower or any of its Subsidiaries; (g) Liens existing on the Amendment No. 2 Effective Date; (h) Liens created pursuant to the Guarantee and Collateral Agreement securing obligations of the Loan Parties under (i) the Loan Documents, (ii) Specified Hedge Agreements, (iii) Specified Cash Management Agreement and (iv) any Non-Facility Letter of Credit; (i) any landlord’s Lien or other interest or title of a lessor under any lease or a licensor under a license entered into by the Borrower or any of its Subsidiaries in the ordinary course of its business and covering only the assets so leased or licensed; (j) Liens created under Pole Agreements on cables and other property affixed to transmission poles or contained in underground conduits; (k) Liens of or restrictions on the transfer of assets imposed by any Governmental Authority or other franchising authority, utilities or other regulatory bodies or any federal, state or local statute, regulation or ordinance, in each case arising in the ordinary course of business in connection with franchise agreements or Pole Agreements; (l) Liens arising from judgments or decrees not constituting an Event of Default under Section 8.1(i); (m) Liens arising under or in connection with any sale and leaseback transaction; (n) Liens on cash collateral securing obligations of the Borrower and its Subsidiaries in respect of Hedge Agreements that are not entered into for speculative purposes and letters of credit issued; (o) junior Liens on assets constituting Collateral under the Guarantee and Collateral Agreement securing Indebtedness of the Borrower or any Guarantor, which Liens shall be subordinated to the Liens securing the Obligations pursuant to a Junior Lien Intercreditor Agreement; - 85- |
| (p) Liens on assets constituting Collateral under the Guarantee and Collateral Agreement securing Indebtedness of the Borrower or any Guarantor that rank pari passu to the Liens securing the Obligations pursuant to a First Lien Intercreditor Agreement so long as, at the time such Indebtedness and Liens were incurred and after giving effect to both the incurrence of such Indebtedness and Liens and the use of proceeds thereof, the Consolidated First Lien Leverage Ratio as of the most recently ended period for which financial statements have been delivered will not exceed 4.0 to 1.0 calculated on a pro forma basis; (q) Liens on Securitization Assets securing or transferred pursuant to any Permitted Securitization Financing; (r) Liens not otherwise permitted by this Section (which Liens may, at the option of the Borrower, rank pari passu to the Liens securing the Obligations pursuant to a First Lien Intercreditor Agreement) so long as the aggregate outstanding principal amount of the obligations secured thereby does not exceed the greater of (x) $7,000,000,000 and (y) 15.00% of Consolidated Net Worth of the Borrower (measured at the time any such obligations are secured pursuant to this clause (r)) at any one time outstanding; (s) [reserved]; (t) CoBank’s Liens (including the right of setoff) in the CoBank Equities and in any cash patronage; (u) Liens incurred by Holdings, the Borrower or any Guarantor to secure Indebtedness for Borrowed Money of such Loan Party to and/or in favor of Holdings, the Borrower or any Guarantor or one or more Subsidiaries of such Loan Party; (v) Liens on Equity Interests, Indebtedness or other securities or assets of a Person that is not a Subsidiary of the Borrower; (w) Liens on property or assets existing at the time of the acquisition thereof or incurred to secure payment of all or a part of the purchase price thereof or to secure indebtedness incurred prior to, at the time of, or within 18 months after the acquisition thereof for the purpose of financing all or part of the purchase price thereof, in a principal amount not exceeding 110% of the purchase price; (x) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Liens described in this Section 7.3 (it being understood that any such Liens described in clause (r) extended, renewed or replaced shall still be deemed outstanding for the purposes of such clause (r) and permitted thereunder), for amounts not exceeding the principal amount of the Indebtedness secured by the Lien so extended, renewed or replaced (plus an amount equal to any premiums, accrued interest, fees and expenses payable in connection therewith); provided, however, that such extension, renewal or replacement Lien is limited to all or a part of the same assets that were covered by the Lien extended renewed or replaced (plus improvements on such assets and any Liens on assets that could have secured the Indebtedness pursuant to written agreements and instruments existing at the time); (y) Liens resulting from progress payments or partial payments under United States government contracts or subcontracts; (z) Liens in connection with grants or subsidies from Governmental Authorities; - 86- |
| Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within (in the case of this clause (ii)) five (5) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or (b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made and, solely to the extent such incorrect representation or warranty is capable of being cured, such incorrect representation or warranty remains incorrect in such respect for 30 days after written notice to the Borrower from the Administrative Agent or the Required Lenders; or (c) any Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to Holdings and the Borrower only), Section 6.7(a), Section 7.1 or Section 7.4 of this Agreement; provided that (x) any Event of Default resulting under Section 6.7(a) from the failure to provide such notice shall be cured upon curing the underlying Default or Event of Default and (y) subsequent delivery of such notice shall cure such Event of Default for failure to provide notice (but not the underlying Default or Event of Default), in each case, unless a Financial Officer or the general counsel or chief legal officer of the Borrower had actual knowledge that such Default or Event of Default had occurred and was continuing and intentionally failed to give notice notwithstanding knowledge thereof; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of 30 days after written notice to the Borrower from the Administrative Agent or the Required Lenders; or (e) Holdings, the Borrower or any Significant Subsidiary shall (i) default in making any payment of any principal or interest of any Indebtedness (including, without duplication, any Guarantee Obligation in respect of Indebtedness, but excluding the Loans) on the scheduled or original due date with respect thereto beyond the later of five (5) Business Days and the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition causes, following the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that, (x) a default, event or condition described in clause (i) or (ii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clause (i) or (ii) of this paragraph (e) shall have occurred and be continuing with respect to such Indebtedness the outstanding aggregate principal amount of which exceeds the Threshold Amount and (y) for the avoidance of doubt, a requirement to make a mandatory offer to repurchase under the terms of any Indebtedness as a result of a “change of control” (or equivalent term) shall not constitute a Default or an Event of Default under this paragraph (e)(iii) so long as: (A) on or prior to the date the events constituting such “change of control” (or equivalent term) occur, either (I) the terms of such Indebtedness have been amended to eliminate the requirement to make such offer, (II) such Indebtedness has been defeased or discharged so that such requirement shall no longer apply (and, in the event such “change of control” is subject to a requirement that a specific credit ratings event or similar condition subsequent occur, no Event of Default - 88- |
| shall exist pursuant to this paragraph (e)(iii) until such time as the specific credit ratings event or similar condition subsequent has also occurred resulting in the obligor under such Indebtedness to become unconditionally obligated to make such offer) or (III) solely in the case of Indebtedness of any Person acquired by the Borrower or any of its Subsidiaries where such “change of control” (or equivalent term) under such Indebtedness resulted from the Borrower or one of its Subsidiary’s acquisition of such Person and (B) the Borrower or the applicable Subsidiary complies with the provisions of such Indebtedness that are applicable as a result of such acquisition (including by consummating any required “change of control offer” (or equivalent term) for such Indebtedness); or (f) [reserved]; or (g) (i) Holdings, the Borrower or any Significant Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of their assets or Holdings, the Borrower or any Significant Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Holdings, the Borrower or any Significant Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against Holdings, the Borrower or any Significant Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or pending appeal within 60 days from the entry thereof; (iv) Holdings, the Borrower or any Significant Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Holdings, the Borrower or any Significant Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (h) (i) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any Loan Party, (ii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iii) any Single Employer Plan shall terminate for purposes of Title IV of ERISA or (iv) any Loan Party or any Commonly Controlled Entity shall, or is likely to, incur any liability in connection with a withdrawal from, or the Insolvency of, a Multiemployer Plan; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or (i) one or more final judgments or decrees shall be entered against Holdings, the Borrower or any Significant Subsidiary involving in the aggregate a liability (to the extent not paid or fully covered by insurance as to which the relevant insurance company has not declined coverage) of the - 89- |
| Each Lender also represents that it will, independently and without reliance upon any 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 analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. (b) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Xxxxxx’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Xxxxxx’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (c) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (b), such Lender further - 95- |
| receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender Recipient Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender Recipient Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender Recipient Party promptly upon determining that any payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount. The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party. This Section 9.13 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided that, for the avoidance of doubt, the immediately preceding sentence shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment. SECTION 10 MISCELLANEOUS 10.1. Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. Subject to Section 2.14(b)(1), the Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall: (i) forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled date of or reduce the amount of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s Commitment, in each case without the consent of each Lender directly affected thereby; (ii) eliminate or reduce any voting rights under this Section 10.1 or reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement (in each case except in connection with Dispositions consummated or approved not in violation of the other terms of this Agreement), in each case without the written consent of all Lenders; - 98- |
| (i) if to the Borrower, the Administrative Agent, an Issuing Lender or a Swingline Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.2; and (ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its administrative questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its administrative questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower). Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices and other communications shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to the Lenders and the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any Issuing Lender pursuant to Section 2 or Section 3 if such Lender or Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor. (c) The Platform. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and each Issuing Lender Borrower Materials by posting the Borrower Materials on the Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Lender or any other Person -100- |
| (b) to pay or reimburse each Lender and each Agent for all its costs and expenses incurred in connection with the enforcement or preservation of any rights, privileges, powers or remedies under this Agreement, the other Loan Documents and any such other documents, including the fees and disbursements of one firm of counsel selected by the Administrative Agent, together with any special or local counsel, to the Administrative Agent and, following the occurrence and during the continuance of an Event of Default, not more than one other firm of counsel to the Lenders (it being understood that the Borrower shall not be obligated to reimburse any Lender (other than the Administrative Agent as provided above) for its expenses pursuant to this clause (b) except to the extent that an Event of Default has occurred and is continuing at the time of any proposed amendment or waiver), (c) to pay, indemnify, and hold each Lender and each Agent harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from, any delay in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of, any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, (d) if any Event of Default shall have occurred, to pay or reimburse all reasonable fees and expenses of a financial advisor engaged on behalf of, or for the benefit of, the Agents and the Lenders accruing from and after the occurrence of such Event of Default, (e) to pay, indemnify, and hold each Lender, each Agent, their advisors and affiliates and their respective officers, directors, trustees, employees, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, including the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document, and (f) to pay, indemnify, and hold each Indemnitee harmless from and against any actual or prospective claim, litigation, investigation or proceeding relating to any of the matters described in clauses (a) through (d) above, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding, and regardless of whether such claim, investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee, whether or not any Indemnitee is a party thereto and whether or not the Restatement Effective Date has occurred) and the reasonable fees and expenses of legal counsel in connection with any such claim, litigation, investigation or proceeding (all the foregoing in clauses (e) and (f), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of any Indemnitee. All amounts due under this Section 10.5 shall be payable not later than 30 days after written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of the Loan Documents, repayment of the Loans and all other amounts payable hereunder. No indemnitee shall be liable for any damages arising from the use by -102- |
| Lender subject to each such assignment (as of the trade date specified in the Assignment and Assumption with respect to such assignment or, if no trade date is so specified, as of the date such Assignment and Assumption is delivered to the Administrative Agent) shall not be less than $5,000,000, in the case of the Revolving Facility ($1,000,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) or, $1,000,000 in the case of Term Loans of any Class ($250,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) and (y) the Aggregate Exposure of such assigning Lender shall not fall below $3,000,000 in the case of the Revolving Facility ($1,000,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) or $1,000,000 in the case of in the case of Term Loans of any Class ($250,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund), unless, in each case, each of the Borrower and the Administrative Agent otherwise consent provided that (1) no such consent of the Borrower shall be required if an Event of Default under Section 8.1(a) or (g) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any; (B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (unless otherwise agreed by the Administrative Agent in its sole discretion); (C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws; (D) Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (D) shall not (x) apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans, (y) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Classes on a non-pro rata basis or (C) prohibit any Revolving Lender from assigning all or portion of its Revolving Commitments of a given Class (and a proportionate amount of all Revolving Extensions of Credit thereunder) separately from its Revolving Commitments of a different Class; and (E) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full -104- |
| pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Percentage in each of the foregoing. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and 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. (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) below, from and after the effective date specified in each Assignment and Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Xxxxxx’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Lender and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The parties intend that all advances will be at all times maintained in “registered form” within the meaning of Section 163(f), Section 165(j), Section 871(h)(2), Section 881(c)(2) and Section 4701 of the Code and any related United States Treasury Regulations (or any other relevant or successor provisions of the Code or of such United States Treasury Regulations). The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. -105- |
| (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent or any Issuing Lender, sell participations to one or more banks or other entities (other than a natural person) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 10.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any Participant that is a Non-U.S. Lender shall not be entitled to the benefits of Section 2.17 unless such Participant complies with Section 2.17(d). (d) Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto. -106- |
| Exhibit B Schedule 10.2 [See attached]. |
| BORROWER: Charter Communications Operating, LLC c/o Charter Communications, Inc. 000 Xxxxxxxxxx Xxxx. Stamford, CT 06902 Attention: Xxxxxxx Xxxxxxx, Chief Financial Officer Telephone: 000-000-0000 Electronic Mail: xxxxxxxx.x.xxxxxxx@xxxxxxx.xxx and Attention: Xxxxx X. Xxxxxxxx, Executive Vice President, General Counsel and Corporate Secretary Telephone: 000-000-0000 Electronic Mail: xxxxx.xxxxxxxx@xxxxxxx.xxx With a copy to: Xxxxxxxx & Xxxxx LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxx Xxxxxx, P.C. Telephone: 000 000 0000 Electronic Mail: Xxxxx.Xxxxxx@xxxxxxxx.xxx ADMINISTRATIVE AGENT FOR FINANCIALS/REPORTING: Bank of America, N.A. Two Bryant Park 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Floor Mail Code: NY1-540-07-11 New York, New York 10036 Attention: Xxx X. Xxxxxx Facsimile: (000) 000-0000 Telephone: (000)-000-0000 Electronic Mail: xxx.x.xxxxxx@xxxx.xxx With a copy to: Xxxxxxx Xxxxx Bank of America Plaza 000 Xxxx Xx. Mail Code: TX1-492-64-01 Dallas, TX, 00000-0000 Telephone: (000)-000-0000 Electronic Mail: xxxxxxx.xxxxx@xxxx.xxx With a copy to: Xxxxxx Xxxxxx & Xxxxxxx LLP |
| 00 Xxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxx Telephone: (000)-000-0000 Electronic Mail: xxxxxxx@xxxxxx.xxx NOTICES (PAYDOWNS/CONVERSIONS) AND SWINGLINE LENDER: Bank of America N.A. 4500 Xxxx Xxxxxx 0000 XXXX XXXXXX XXXX Xxxx Xxxx: XX0-979-02-22 Fort Worth, TX 76155 Attention: Xxxxx Xxxxxx Telephone: (000)-000-0000 Facsimile: (000)-000-0000 Email: xxxxx.x.xxxxxx@xxxx.xxx Payment Instructions: Bank of America N.A. ABA# 000000000 New York, New York Account No.: 1366072250600 Attn: Wire Clearing Acct for Syn Loan - LIQ Ref: Charter Communications Operating LLC |
