AMENDMENT NO. 3
Exhibit 10.1
Execution Version
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of November 22, 2022 (this “Amendment”), to the Credit Agreement dated as of October 2, 2020 (as amended by that certain Amendment No. 1, dated as of January 15, 2021, as amended by that certain Amendment No. 2, dated as of April 5, 2021, and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Consolidated Communications Holdings, Inc., a Delaware corporation (“Holdings”), Consolidated Communications, Inc., an Illinois corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), Xxxxx Fargo Bank, National Association, as Administrative Agent (in such capacity, the “Administrative Agent”), and the other parties thereto. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, pursuant to Section 2.22 of the Credit Agreement, the Borrower desires to extend the Revolving Maturity Date and make certain other Permitted Amendments in connection therewith; and
WHEREAS, in connection with and in consideration of the proposed extension of the Revolving Maturity Date, the Borrower has requested and, subject to the representations and warranties set forth herein and on the terms and conditions set forth herein, the Lenders party hereto are willing to make certain other modifications to the Credit Agreement set forth below.
Section 1. Amendments.
Effective as of the Effective Date (as defined below) and subject to the terms and conditions set forth herein and in reliance upon representations and warranties set forth herein, the parties hereto hereby agree as follows:
(a) the
body of the Credit Agreement is hereby amended to (i) delete the stricken text (indicated textually in the same manner as the following
example: stricken text), (ii) to add the double-underlined text (indicated textually
in the same manner as the following example: double-underlined text)
and (iii) move the green double-underlined text (indicated textually in the same manner as the following example: double-underlined
text), in each case, as set forth in the Credit Agreement attached as Exhibit A hereto; and
(b) Exhibit A (Form of Borrowing Request), Exhibit G (Form of Notice of Prepayment) and Exhibit I (Notice of Conversion/Continuation) to the Credit Agreement are each hereby amended and restated in their entirety in the forms attached hereto as Exhibit B.
Section 2. Revolving Extension Offer.
Each Revolving Lender hereby agrees that, as of the Effective Date, (i) it is an “Accepting Revolving Lender” for purposes of the Credit Agreement and (ii) the Revolving Maturity Date applicable to its Revolving Loans and Revolving Commitments shall be as set forth in the amended Credit Agreement attached as Exhibit A hereto. By its execution of this Amendment, the Administrative Agent and each Revolving Lender hereby agrees that this Amendment shall constitute sufficient prior notice of the Revolving Extension Offer pursuant to Section 2.22 of the Credit Agreement and that this Amendment is a “Revolving Extension Agreement” as defined in the Credit Agreement.
Section 3. Conditions to Effectiveness.
This Amendment shall become effective on the date on which each of the following conditions is satisfied (“Effective Date”):
(a) the Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified:
(i) executed counterparts of this Amendment from (A) Holdings and the Borrower (each signed by an Authorized Officer thereof), (B) each of the Revolving Lenders, (C) each of the Issuing Banks and (D) the Administrative Agent;
(ii) an opinion of ArentFox Schiff, New York, Illinois and Delaware counsel for the Loan Parties (addressed to the Administrative Agent and the Lenders and dated the Effective Date), including an opinion as to no conflict with the Series A Certificate of Designations (as defined in the Investment Agreement) governing the Series A Preferred Stock (as defined in the Investment Agreement);
(iii) a certificate of a Financial Officer of the Borrower and of an Authorized Officer of each other Loan Party certifying as to the incumbency and genuineness of the signature of each officer of such Loan Party executing this Amendment or the Consent and Reaffirmation Agreement (as defined below) to the extent a party thereto and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation or formation (or equivalent), as applicable, of such Loan Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable (or a representation that such documents have not been amended or otherwise modified since the Closing Date or in the case of any Loan Party joined to the Loan Documents after the Closing Date, the date of such joinder), (B) the bylaws or other governing document of such Loan Party as in effect on the Effective Date (or a representation that such documents have not been amended or otherwise modified since the Closing Date or in the case of any Loan Party joined to the Loan Documents after the Closing Date, the date of such joinder), (C) resolutions duly adopted by the board of directors (or other governing body) of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment (including the exhibits hereto) or the Consent and Reaffirmation Agreement to the extent a party thereto, and (D) evidence of the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment or the Consent and Reaffirmation Agreement to the extent a party thereto; and
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(iv) a Consent and Reaffirmation, dated as of the date hereof and executed by Holdings and each of the Subsidiary Loan Parties (the “Consent and Reaffirmation Agreement”), whereby Holdings and each of the Subsidiary Loan Parties consents to this Amendment and reaffirms (A) its obligations and liabilities under the Loan Documents (as amended by this Amendment) and (B) each Lien, security interest and pledge granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party.
(b) the Administrative Agent shall have received certificates dated as of a recent date of the good standing of each Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(c) to the extent invoiced at least two (2) Business Days prior to the Effective Date or as set forth in a funds flow approved by the Borrower, all (x) agreed-upon fees payable to the Lead Arrangers, including, without limitation, with respect to each Revolving Lender party hereto, a consent fee equal to 20 basis points times the sum of the aggregate principal amount of its Revolving Commitment on the Effective Date and (y) reasonable and documented out-of-pocket expenses due to the Lead Arrangers and the Administrative Agent, in each case to the extent required to be paid on the Effective Date (including pursuant to Section 5 hereof), shall have been paid;
(d) at the time of and immediately after giving effect to this Amendment and the borrowing of any Loans on the Effective Date, no Default has occurred and is continuing or would result therefrom;
(e) the representations and warranties made by each Loan Party set forth in Section 4 hereof, in Article III of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as if then made (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date);
(f) Holdings, the Borrower and each of the other Loan Parties shall have provided to the Administrative Agent and the Revolving Lenders, at least three (3) Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and a Beneficial Ownership Certification for any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case to the extent requested of the Borrower at least seven (7) Business Days prior to the Effective Date;
(g) the Administrative Agent shall have received flood hazard certifications with respect to each real property location that is subject to a Mortgage, and for any such real property location that is in a flood zone, evidence of flood insurance (with appropriate endorsements naming the Administrative Agent as mortgagee and lender loss payee);
(h) the Administrative Agent shall have received evidence in form and substance satisfactory to it confirming that an aggregate amount equal to at least $401,000,000.00, which the Borrower hereby represents and warrants is approximately the amount of the proceeds actually held by any Unrestricted Subsidiary as of November 7, 2022 in respect of the Disposition described in that certain Form 8-K filing of Holdings dated as of September 13, 2022 has been distributed, directly or indirectly, to the Borrower or another Loan Party; and
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(i) Holdings shall have received (and delivered to the Administrative Agent a copy certified by an Authorized Officer of Holdings to be a true, correct and complete copy of) a waiver, in form and substance reasonably satisfactory to the Administrative Agent, that is executed by the holders of any Series A Preferred Stock and is sufficient under Applicable Law to waive, until October 2, 2027, the restriction precluding Holdings from electing not to declare and pay any cash dividends with respect to such Series A Preferred Stock after October 2, 2025 (it being understood that any dividend not declared and fully paid in cash, whether during the period of such waiver or otherwise, shall accrue as set forth in the Series A Certificate of Designations (as defined in the Investment Agreement)).
Without limiting the generality of the provisions of Section 8.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Section 4. Representations and Warranties.
The Borrower represents and warrants to the Administrative Agent and the Lenders as of the date hereof and the Effective Date that:
(a) immediately before and after giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties made by each Loan Party set forth in Article III of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as if then made (unless expressly stated to relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (or in all respects, as applicable) as of such earlier date); and
(b) at the time of and immediately after giving effect to this Amendment and the transactions contemplated hereby, no Default has occurred and is continuing or would result therefrom.
Section 5. Expenses.
The Borrower agrees to reimburse the Lead Arrangers and the Administrative Agent for their reasonable and documented out-of-pocket expenses incurred by them in connection with this Amendment (including the reasonable and documented fees, charges and disbursements of XxXxxxxXxxxx LLP) as and when required by Section 9.03 of the Credit Agreement.
Section 6. Counterparts.
This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment and/or any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the keeping of records in electronic form, each of which shall be
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of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature.
Section 7. Governing Law and Waiver of Right to Trial by Jury.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The jurisdiction and waiver of right to trial by jury provisions in Sections 9.05 and 9.06 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
Section 8. Headings.
The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 9. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. This Amendment shall not constitute a novation of the Credit Agreement or any of the Loan Documents or serve to effect a novation of the Obligations outstanding under the Credit Agreement or instruments guaranteeing or securing the same, which instruments shall remain and continue in full force and effect. Nothing herein shall be deemed to establish a precedent for purposes of interpreting the provisions of the Credit Agreement or entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply to and be effective only with respect to the provisions of the Credit Agreement and the other Loan Documents specifically referred to herein.
On and after the Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Credit Agreement, “thereunder”, “thereof”, “therein” or words of like import in any other Loan Document, shall be deemed a reference to the Credit Agreement, as amended hereby. This Amendment shall constitute a “Permitted Amendment” and a “Revolving Extension Agreement” and shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
Section 10. Reaffirmation.
(a) The Borrower and Holdings hereby consent to the execution, delivery and performance of this Amendment and agree that each reference to the Credit Agreement in the Loan Documents shall, on
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and after the Effective Date, be deemed to be a reference to the Credit Agreement, as amended by this Amendment.
(b) The Borrower and Holdings each hereby acknowledge and agree that, after giving effect to this Amendment, all of its respective obligations and liabilities under the Loan Documents to which it is a party, as such obligations and liabilities have been amended by this Amendment, are reaffirmed, and remain in full force and effect.
(c) The Borrower and Holdings each hereby irrevocably and unconditionally (x) ratify the Borrower’s and Holdings’ prior grant and prior pledge of all security interests and Liens under the Security Documents and each Loan Document, with all such security interests and Liens continuing in full force and effect after giving effect to this Amendment and the Credit Agreement as amended by this Amendment and (y) confirms that the Liens, security interests and pledges granted thereunder continue to secure the Obligations, including, without limitation, any additional Obligations resulting from or incurred pursuant to the Credit Agreement, as amended by this Amendment.
Section 11. Miscellaneous.
All Revolving Loans that are Eurodollar Loans (as defined in the Credit Agreement) outstanding under the Credit Agreement shall continue as Eurodollar Loans under the Credit Agreement (and, notwithstanding anything in this Amendment including Exhibit A hereto to the contrary, subject to the terms and conditions and applicable interest rate terms (including breakage) with respect to Eurodollar Loans under the Credit Agreement) solely for the remainder of the Interest Periods applicable thereto immediately prior to the effectiveness of this Amendment; it being understood that such Revolving Loans that are Eurodollar Loans and such Interest Periods are not being renewed or extended as a result of this Amendment and, upon the expiration or earlier termination of such Interest Periods, such Eurodollar Loans shall be (i) repaid or (ii) converted to Alternate Base Rate Loans or Term SOFR Loans (in each case, as defined in the amended Credit Agreement attached hereto as Exhibit A) as the Borrower may elect (which election in the case of clause (ii) shall be made in accordance with the notice requirements set forth in Section 2.03 of the Credit Agreement as though the Borrower were requesting a borrowing to be made on the effective date of such conversion); provided that if the Borrower fails to submit a timely Notice of Conversion/Continuation, such Eurodollar Loan shall be automatically converted to a Term SOFR Loan as of the last day of such Interest Period.
[Signature Pages Follow]
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CONSOLIDATED COMMUNICATIONS HOLDINGS, INC. |
By: | /s/ Xxxxxx X. Xxxxxxxx |
Name: | Xxxxxx X. Xxxxxxxx | |
Title: | Chief Financial Officer |
CONSOLIDATED COMMUNICATIONS, INC. |
By: | /s/ Xxxxxx X. Xxxxxxxx |
Name: | Xxxxxx X. Xxxxxxxx | |
Title: | Chief Financial Officer |
[Signature Page to Amendment No. 3 - Consolidated]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx | |
Title: | Director |
[Signature Page to Amendment No. 3 - Consolidated]
JPMORGAN CHASE BANK, N.A., as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxx X. Xxxxxx |
Name: | Xxxxx X. Xxxxxx | |
Title: | Managing Director |
[Signature Page to Amendment No. 3 - Consolidated]
XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxxxx Xxxx |
Name: | Xxxxxxx Xxxx | |
Title: | Vice President |
[Signature Page to Amendment No. 3 - Consolidated]
XXXXXXX SACHS BANK USA, as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxxx Xxxxxxx |
Name: | Xxxxxx Xxxxxxx | |
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 - Consolidated]
CoBank, ACB, as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxxxxx Xxxxxx |
Name: | Xxxxxxxx Xxxxxx | |
Title: | Vice President |
[Signature Page to Amendment No. 3 - Consolidated]
THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxx Xxxxxx |
Name: | Xxx Xxxxxx | |
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 - Consolidated]
DEUTSCHE BANK AG NEW YORK BRANCH, as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Associate |
By: | /s/ Xxxxxx Xxxxxxxx |
Name: | Xxxxxx Xxxxxxxx | |
Title: | Vice President |
[Signature Page to Amendment No. 3 - Consolidated]
Mizuho Bank, Ltd., as a Revolving Lender and an Issuing Bank |
By: | /s/ Xxxxx Xxxx |
Name: | Xxxxx Xxxx | |
Title: | Executive Director |
[Signature Page to Amendment No. 3 - Consolidated]
Exhibit A to Amendment No. 3
[amended Credit Agreement attached]
Final Conformed Copy 141683210_5 163765871_7 Published CUSIP Number: 20903EAY1Revolving Loan CUSIP Number: 20903EAZ8Initial Term Loan CUSIP Number: 20903EBA2Term B-1 Loan CUSIP Number: 20903EBB0CREDIT AGREEMENT[1]Dated as of October 2, 2020amongCONSOLIDATED COMMUNICATIONS HOLDINGS, INC.,as Holdings,CONSOLIDATED COMMUNICATIONS, INC.,as Borrower,THE LENDERS REFERRED TO HEREIN,XXXXX FARGO BANK, NATIONAL ASSOCIATION,as Administrative Agent, Issuing Bank and Swingline Lender,andJPMORGAN CHASE BANK, N.A.,XXXXXX XXXXXXX SENIOR FUNDING, INC.,XXXXX FARGO SECURITIES, LLC,XXXXXXX XXXXX BANK USA,DEUTSCHE BANK SECURITIES INC.,TD SECURITIES (USA) LLC,COBANK, ACBandMIZUHO BANK, XXX.xx Joint Lead Arrangers and Joint Bookrunners 1 Conformed for Amendment No. 1 dated as of January 15, 2021, Amendment No. 2 dated as of April 5, 2021 and Amendment No. 2 3 dated as of April 5 November 22 , 2021 2022 22-31184-1 C1.1 P17 |
TABLE OF CONTENTSPage ARTICLE IDEFINITIONSSection 1.01Defined Terms 1Section 1.02Classification of Loans and Borrowings 46Section 1.03Terms Generally 46Section 1.04UCC Terms 46Section 1.05Rounding 46Section 1.06References to Agreement and Laws 47Section 1.07Times of Day 47Section 1.08Letter of Credit Amounts 47Section 1.09Limited Condition Transactions 47Section 1.10Certain Calculations and Tests 48Section 1.11Divisions 48Section 1.12Rates; LIBO Rate Notification 49ARTICLE IITHE CREDITSSection 2.01Credit Commitments 49Section 2.02Procedure for Borrowing 50Section 2.03Conversion and Continuation Options for Loans 51Section 2.04Swingline Loans 51Section 2.05Optional and Mandatory Prepayments of Loans 53Section 2.06Letters of Credit 55Section 2.07Repayment of Loans; Evidence of Debt 59Section 2.08Interest Rates and Payment Dates 60Section 2.09Computation of Interest 61Section 2.10Fees 61Section 2.11Termination, Reduction or Adjustment of Commitments 61Section 2.12Alternate Rate of Interest 62Section 2.13Pro Rata Treatment and Payments 63Section 2.14Illegality 65Section 2.15Increased Costs 65Section 2.16Taxes 66Section 2.17Indemnity 69Section 2.18Change of Lending Office 69Section 2.19[Reserved] 69Section 2.20Assignment of Commitments Under Certain Circumstances 69Section 2.21Increase in Commitments 70Section 2.22Extension Offers 72Section 2.23Defaulting Lenders 73Section 2.24Cash Collateral 75Section 2.25Refinancing Amendments 75-i-141683210_5163765871_7 22-31184-1 C1.1 P18 |
Page ARTICLE IIIREPRESENTATIONS AND WARRANTIESSection 3.01Organization, etc 76Section 3.02Due Authorization, Non-Contravention, etc 76Section 3.03Government Approval, Regulation, etc 77Section 3.04Validity, etc 77Section 3.05Financial Information 77Section 3.06No Material Adverse Effect 77Section 3.07Litigation 77Section 3.08Compliance with Laws and Agreements 77Section 3.09Subsidiaries 78Section 3.10Ownership of Properties 78Section 3.11Taxes 78Section 3.12Pension and Welfare Plans 79Section 3.13Environmental Warranties 79Section 3.14Regulations T, U and X 80Section 3.15Disclosure; Accuracy of Information; Projected Financial Statements 80Section 3.16Insurance 80Section 3.17Labor Matters 80Section 3.18Solvency 81Section 3.19Securities 81Section 3.20Security Documents 81Section 3.21Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions 82Section 3.22Communications Matters 82Section 3.23Beneficial Ownership Certificate 83ARTICLE IVCONDITIONSSection 4.01Conditions to Closing and Initial Extensions of Credit 83Section 4.02Conditions to Each Credit Event after the Closing Date 85ARTICLE VAFFIRMATIVE COVENANTSSection 5.01Financial Information, Reports, Notices, etc 86Section 5.02Compliance with Laws, etc 88Section 5.03Maintenance of Properties 89Section 5.04Insurance 89Section 5.05Books and Records; Visitation Rights 90Section 5.06Environmental Covenant 90Section 5.07Information Regarding Collateral 91Section 5.08Existence; Conduct of Business 91Section 5.09Performance of Obligations 91Section 5.10Casualty and Condemnation 91Section 5.11Pledge of Additional Collateral 91Section 5.12Further Assurances 92Section 5.13Use of Proceeds 92Section 5.14Payment of Taxes and Other Claims 92Section 5.15Equal Security for Loans and Notes 92-ii-141683210_5 163765871_7 22-31184-1 C1.1 P19 |
Page Section 5.16Guarantees 93Section 5.17Covenants Regarding Post-Closing Deliveries 93Section 5.18Compliance with Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions 93Section 5.19Lender Calls 93Section 5.20Ratings 93ARTICLE VINEGATIVE COVENANTSSection 6.01Indebtedness; Certain Equity Securities 94Section 6.02Liens 98Section 6.03Fundamental Changes; Line of Business 100Section 6.04Investments, Loans, Advances, Guarantees and Acquisitions 101Section 6.05Asset Sales 102Section 6.06Sale and Leaseback Transactions 103Section 6.07Restricted Payments 103Section 6.08Transactions with Affiliates 105Section 6.09Restrictive Agreements 105Section 6.10Amendments or Waivers of Certain Documents 106Section 6.11Consolidated First Lien Leverage Ratio 106ARTICLE VIIEVENTS OF DEFAULTSection 7.01Listing of Events of Default 107Section 7.02Right to Cure 109Section 7.03Action if Bankruptcy 110Section 7.04Action if Financial Covenant Event of Default 110Section 7.05Action if Other Event of Default 110Section 7.06Action if Event of Termination 110Section 7.07Crediting of Payments and Proceeds 111Section 7.08Rights and Remedies Cumulative; Non-Waiver; etc 111ARTICLE VIIITHE ADMINISTRATIVE AGENTSection 8.01Appointment and Authority 112Section 8.02Rights as a Lender 112Section 8.03Exculpatory Provisions 112Section 8.04Reliance by the Administrative Agent 113Section 8.05Delegation of Duties 113Section 8.06Resignation of Administrative Agent 114Section 8.07Non-Reliance on Administrative Agent and Other Lenders 115Section 8.08No Other Duties, Etc 115Section 8.09Collateral and Guaranty Matters 115Section 8.10Secured Hedging Agreements and Secured Cash Management Agreements 116Section 8.11Withholding Taxes 116Section 8.12Certain ERISA Matters 117-iii-141683210_5 163765871_7 22-31184-1 C1.1 P20 |
Page ARTICLE IXMISCELLANEOUSSection 9.01Notices 118Section 9.02Amendments, Waivers and Consents 120Section 9.03Expenses; Indemnity 123Section 9.04Right of Set Off 124Section 9.05Governing Law; Jurisdiction, Etc 125Section 9.06Waiver of Jury Trial 125Section 9.07Reversal of Payments 126Section 9.08Injunctive Relief 126Section 9.09Accounting Matters 126Section 9.10Successors and Assigns; Participations 126Section 9.11Confidentiality 130Section 9.12Performance of Duties 131Section 9.13All Powers Coupled with Interest 131Section 9.14Survival of Indemnities 131Section 9.15Titles and Captions 131Section 9.16Severability of Provisions 131Section 9.17Counterparts; Integration; Effectiveness; Electronic Execution 131Section 9.18Term of Agreement 132Section 9.19USA PATRIOT Act 132Section 9.20Conflict with Other Loan Documents 132Section 9.21No Advisory or Fiduciary Responsibility 132Section 9.22Affiliate Lenders 133Section 9.23Acknowledgement and Consent to Bail-In of Affected Financial Institutions 134Section 9.24Acknowledgment Regarding Any Supported QFCs 135-iv-141683210_5 163765871_7 22-31184-1 C1.1 P21 |
EXHIBIT AForm of Borrowing RequestEXHIBIT B-1Form of Assignment and AssumptionEXHIBIT B-2Form of Permitted Loan Purchase Assignment and AssumptionEXHIBIT B-3Form of Affiliate Lender Assignment and AssumptionEXHIBIT CForm of Compliance CertificateEXHIBIT D-1Form of Initial Term Loan NoteEXHIBIT D-2Form of Revolving Loan NoteEXHIBIT D-3Form of Term B-1 NoteEXHIBIT E-1Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)EXHIBIT E-2Form of U.S. Tax Compliance Certificate (Non-Partnership ForeignParticipants)EXHIBIT E-3Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)EXHIBIT E-4Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)EXHIBIT FForm of MortgageEXHIBIT GForm of Notice of PrepaymentEXHIBIT HForm of Notice of Account DesignationEXHIBIT IForm of Notice of Conversion/ContinuationEXHIBIT JForm of First Lien Intercreditor AgreementEXHIBIT KForm of Solvency CertificateEXHIBIT LForm of Secured Hedging Provider DesignationSCHEDULE 1.01(a)Material Real PropertiesSCHEDULE 1.01(b)Existing Letters of CreditSCHEDULE 2.01CommitmentsSCHEDULE 3.03Government Approval, RegulationSCHEDULE 3.05(b)Other LiabilitiesSCHEDULE 3.07LitigationSCHEDULE 3.08Compliance with Laws and AgreementsSCHEDULE 3.09SubsidiariesSCHEDULE 3.10(b)Leased and Owned Real PropertySCHEDULE 3.12ERISA MattersSCHEDULE 3.13(a)Facilities/Properties Not in Compliance with Environmental LawsSCHEDULE 3.13(b)Environmental ClaimsSCHEDULE 3.13(c)Hazardous MaterialsSCHEDULE 3.13(e)Sites listed for Clean-up/InvestigationSCHEDULE 3.16InsuranceSCHEDULE 3.19SecuritiesSCHEDULE 3.22ConsentsSCHEDULE 5.17Post Closing MattersSCHEDULE 6.01(a)(v)Indebtedness to Remain OutstandingSCHEDULE 6.02(iv)Liens to Remain OutstandingSCHEDULE 6.03(c)Other BusinessesSCHEDULE 6.04(ii)Existing InvestmentsSCHEDULE 6.08(v)Existing Affiliate TransactionsSCHEDULE 6.09(iii)Existing Restrictions-v-141683210_5 163765871_7 22-31184-1 C1.1 P22 |
“Administrative Agent ” has the meaning assigned to such term in the preamble hereto.“Administrative Agent Fees ” has the meaning assigned to such term in Section 2.10(c) ..“Administrative Agent’s Office ” means the office of the Administrative Agent specified in or determined inaccordance with the provisions of Section 9.01 ..“Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by theAdministrative Agent.“Affected Financial Institution ” means (a) any EEA Financial Institution or (b) any UK FinancialInstitution.“Affiliate ” of any Person means any other Person which, directly or indirectly, controls, is controlled by oris under common control with such Person (excluding any trustee under, or any committee with responsibility foradministering, any Plan). A Person shall be deemed to be “controlled by” any other Person if such other Personpossesses, directly or indirectly, power(a)solely for purposes of determining compliance withSection 6.08 , to vote 10% or more ofthe securities (on a fully diluted basis) having ordinary voting power for the election of directors ormanaging general partners; or(b)to direct or cause the direction of the management and policies of such Person whether bycontract or otherwise.“Affiliate Lender ” has the meaning assigned to such term in Section 9.22(a) ..“Agent Parties ” has the meaning assigned to such term in Section 9.01(e) ..“Aggregate Revolving Exposure ” means the aggregate amount of the Revolving Lenders’ RevolvingExposures.“Agreement ” has the meaning assigned to such term in the preamble hereto.“All-in Yield ” means, as to any Indebtedness on any date of determination, theper annum yield thereon, asdetermined by the Administrative Agent, based on the interest rate spreads, interest rate benchmark floors, upfrontfees and original issue discount (with upfront fees and original issue discount being equated to yield based on anassumed four-year life to maturity, or if less, the then remaining life to maturity), but excluding any structuring,commitment, amendment and arranger fees or other similar fees unless such similar fees are paid to all lendersgenerally in the primary syndication of such Indebtedness.“Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate ineffect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) (i) in the case of Term Loans, the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, theimmediately preceding Business Day) plus 1% and (ii) in the case of any other Loans, the Adjusted Term SOFR for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% ; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, theInterpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Ratedue to a change in the Prime Rate, the NYFRB Rate or , the Adjusted LIBO Rateor the Adjusted Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or , the Adjusted LIBO Rate or the Adjusted Term SOFR , respectively. If the Alternate Base Rate is being used as an alternate rate of interest for the LIBO Rate pursuant toSection 2.12 (for the avoidance of doubt, only until any amendment has become effective pursuant toSection 2.12(b) ), then the Alternate Base Rate shall be the greater ofclauses (a) and (b) above and shall be determined without reference to clause (c)(i) above. If the Alternate Base -2-141683210_5 163765871_7 22-31184-1 C1.1 P24 |
Rate is being used as an alternate rate of interest for Term SOFR pursuant to Section 2.12 (for the avoidance of doubt, only until any amendment has become effective pursuant to Section 2.12(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c)(ii) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than (x)in the case of the Term B-1 Loans, 1.75%, such rate shall be deemed to be 1.75% for purposes of this Agreementand (y) in the case of the Revolving Loans, 1.00%, such rate shall be deemed to be 1.00% for purposes of thisAgreement.“Amendment Lead Arrangers” means JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Securities, LLC, Xxxxxxx Xxxxx Bank, USA, Deutsche Bank Securities Inc., TD Securities (USA) LLC and Mizuho Bank, Ltd. and each of their respective successors and assigns. “Amendment No. 1 ” means Amendment No. 1, dated as of January 15, 2021, among the Borrower,Holdings, JPMorgan Chase Bank, N.A., as incremental term loan lender, and the Administrative Agent.“Amendment No. 2 ” means Amendment No. 2 to this Agreement, dated as of April 5, 2021, by and amongHoldings, the Borrower, the Lenders party thereto and the Administrative Agent.“Amendment No. 2 Effective Date ” means the Effective Date (as defined in Amendment No. 2).“Amendment Lead Arrangers ” means JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Securities, LLC, Xxxxxxx Xxxxx Bank, USA, Deutsche Bank Securities Inc., TD Securities (USA) LLC and Mizuho Bank, Ltd. and each of their respective successors and assigns. No. 3” means Amendment No. 3 to this Agreement, dated as of November 22, 2022, by and among Holdings, the Borrower, the Lenders party thereto and the Administrative Agent. “Amendment No. 3 Effective Date” means the Effective Date (as defined in Amendment No. 3). “Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to Holdings orits Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, theUnited States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. BriberyAct 2010 and the rules and regulations thereunder.“Anti-Money Laundering Laws ” means any and all laws, statutes, regulations or obligatory governmentorders, decrees, ordinances or rules applicable to a Loan Party, its Subsidiaries or Affiliates related to terrorismfinancing or money laundering, including any applicable provision of the PATRIOT Act and The Currency andForeign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C.§§ 1818(s), 1820(b) and 1951-1959).“Applicable Law ” means, collectively, all international, foreign, Federal, state and local statutes, treaties,rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents orauthorities, including the interpretation or administration thereof by any Governmental Authority charged with theenforcement, 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 casewhether or not having the force of law.“Applicable Rate ” means, for any day, (a) with respect to the Term B-1 Loan, (i) in the case of ABR Loans,2.50%per annum, and (ii) in the case of Eurodollar Loans, 3.50%per annum; (b) with respect to Revolving Loans,(i) in the case of ABR Loans, 3.00%per annum, and (ii) in the case ofEurodollar Term SOFR Loans, 4.00%per annum; (c) with respect to the Commitment Fee, 0.50%per annum; and (d) with respect to any Incremental TermLoans, the rate(s) set forth in the applicable Incremental Facility Amendment;provided, that after the Trigger Date,the rates set forth in the preceding clause (b) shall be subject to a 0.25% reduction and the rate set forth in clause (c)shall be subject to a 0.125% reduction in each case if and for so long as the Consolidated First Lien Leverage Ratio-3-141683210_5 163765871_7 22-31184-1 C1.1 P25 |
does not exceed 3.20 to 1.00 as of the most recent determination date. For purposes of such calculation, (a) theConsolidated First Lien Leverage Ratio shall be determined as of the end of each Fiscal Quarter of Holdings’ FiscalYear based upon the consolidated financial statements delivered pursuant toSection 5.01(a) or(b) and (b) eachchange in the Applicable Rate resulting from a change in the Consolidated First Lien Leverage Ratio shall beeffective ten (10) Business Days after the date on which the Administrative Agent shall have received the applicablefinancial statements and a Compliance Certificate calculating such Consolidated First Lien Leverage Ratio pursuanttoSections 5.01(a) and(c) orSection 5.01(b) , as applicable. If at any time the Borrower has not submitted to theAdministrative Agent the applicable information as and when required underSection 5.01(a) ,(b) or(c) , theApplicable Rate shall be the rate set forth in clauses (b) and (c) (for the avoidance of doubt, without giving effect tothe proviso to the first sentence of this definition) until such time as the Borrower has provided the informationrequired underSection 5.01(a) ,(b) or(c) .. Within one (1) Business Day of receipt of the applicable information asand when required underSections 5.01(a) and(c) , orSection 5.01(b) , as applicable, the Administrative Agent shallgive each Lender written notice of the Applicable Rate in effect from such date.Notwithstanding the foregoing, in the event that any financial statement or Compliance Certificate deliveredpursuant toSection 5.01(a) ,(b) or(c) is shown to be inaccurate (regardless of whether (a) this Agreement is ineffect, or (b) the Revolving Commitments are in effect, or (c) any Loans or Obligations hereunder are outstandingwhen such inaccuracy is discovered or such financial statement or Compliance Certificate was delivered), and suchinaccuracy, if corrected, would have led to the application of a higher Applicable Rate with respect to RevolvingLoans and the Commitment Fee for any period (an “Applicable Period ”) than the relevant Applicable Rate appliedfor such Applicable Period, then (x) the Borrower shall immediately deliver to the Administrative Agent a correctCompliance Certificate for such Applicable Period, (y) the Applicable Rate for such Applicable Period shall bedetermined as if the Consolidated First Lien Leverage Ratio in the corrected Compliance Certificate were applicablefor such Applicable Period, and (z) the Borrower shall immediately pay to the Administrative Agent the accruedadditional interest owing as a result of such increased Applicable Rate for such Applicable Period, which paymentshall be promptly applied by the Administrative Agent in accordance withSection 2.13 .. Nothing in this paragraphshall limit the rights of the Administrative Agent and Lenders with respect to Section 7.01 ..“Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of aLender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.“Arrangers ” means (x) JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx FargoSecurities, LLC, Xxxxxxx Xxxxx Bank USA, Deutsche Bank Securities Inc., TD Securities (USA) LLC, CoBank,ACB and Mizuho Bank Ltd. and each of their respective successors and assigns and (y) with respect to AmendmentNo. 1 and Amendment No. 2, the Amendment Lead Arrangers. “Asset Sale ” means any non-ordinary course Disposition, except (a) sales, dispositions and leasespermitted bySection 6.05 (other than clause (h) thereof), (b) any such transaction or series of transactions which, ifnot otherwise excluded pursuant to clause (a), would not generate Net Proceeds in excess of $5.0 million and (c) anytransactions which are not otherwise excluded pursuant to clause (a), but in the aggregate (taken together with allsuch dispositions made pursuant to clause (c)) since the Closing Date have a Fair Market Value not exceeding thegreater of $100.0 million and 3.0% of Total Assets.“Assignment and Assumption ” means an assignment and assumption entered into by a Lender and anassignee (with the consent of any party whose consent is required bySection 9.10 ), and accepted by theAdministrative Agent, in substantially the form ofExhibit B-1 (or, in the case of an assignment to an AffiliateLender, in the form of Exhibit B-3 ) or any other form approved by the Administrative Agent.“Attributable Sale Leaseback Obligations ” in respect of a Sale and Leaseback Transaction means, at thetime of determination, the present value of the obligation of the lessee for net rental payments during the remainingterm of the lease included in such Sale and Leaseback Transaction, including any period for which such lease hasbeen extended or may, at the option of the lessor, be extended. Such present value will be calculated using a discountrate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.-4-141683210_5 163765871_7 22-31184-1 C1.1 P26 |
“Audited Financial Statements ” means the audited consolidated balance sheets of Holdings and itsSubsidiaries as of as of December 31, 2017, 2018 and 2019 and related statements of income, stockholders’ equityand cash flows of Holdings and its Subsidiaries for the three fiscal years ended December 31, 2019.“Authorized Officer ” means, with respect to the Borrower, its chief executive officer, president, chieffinancial officer, controller, treasurer or assistant treasurer or any other officer thereof designated in writing andreasonably acceptable to the Administrative Agent, in each case whose signature and incumbency has been certifiedto the Administrative Agent and the Lenders by the Secretary of the Borrower in a certificate dated the Closing Dateor any successor thereto.“Auto-Extension Letter of Credit ” has the meaning assigned to such term in Section 2.06(b) ..“Available Cash ” means, for any Fiscal Year, for the period commencing on the first day of such FiscalYear and ending on the last day of such Fiscal Year, an amount equal to the sum (as calculated for Holdings and itsSubsidiaries on a consolidated basis for such Fiscal Year) of:(a)Consolidated EBITDA for such period (without giving pro forma effect to the eventsdescribed in the last paragraph of such definition) minus (b)to the extent not deducted in the determination of Consolidated EBITDA for such period,the sum (without duplication) of the following in each case, for such period:(i)(X) non-cash dividend income and (Y) any other non-cash credits included inConsolidated EBITDA;(ii)cash Consolidated Interest Expense;(iii)Capital Expenditures from Internally Generated Funds;(iv)cash income taxes;(v)scheduled principal payments of Indebtedness from Internally Generated Funds,if any;(vi)voluntary prepayments of Indebtedness from Internally Generated Funds (otherthan in (i) connection with any Permitted Refinancing, (ii) prepayments of the Revolving Facilityor (iii) any voluntary prepayment of the Term Loans which shall be the subject ofSection 2.05(c)(iii)(B) ), including any premium, make-whole or penalty payments related thereto;(vii)the cash cost of any extraordinary or unusual losses or charges;(viii)all cash payments made on account of losses or charges expensed during or priorto such period (to the extent not deducted in the determination of Consolidated EBITDA for suchprior period);(ix)all Transaction Fees added back in clause (a)(v) of the definition ofConsolidated EBITDA for such period;(x)all cash amounts added back in clause (d) of the definition of ConsolidatedEBITDA;(xi)all cash payments in respect of cash contributions for pension obligations and“other post-employment benefit” related expenditures; and(xii)all increases in Consolidated Working Capital; plus-5-141683210_5 163765871_7 22-31184-1 C1.1 P27 |
(c)to the extent not included in the determination of Consolidated EBITDA, (i) cash interestincome for such period, (ii) the cash amount realized in respect of extraordinary or unusual gains duringsuch period other than to the extent subject to the requirements ofSection 2.05(c)(ii) and (iii) all decreasesin Consolidated Working Capital during such period.“Available Incremental Amount ” has the meaning assigned to such term in Section 2.21(a) ..“Available Proceeds ” means, at any time, the net cash proceeds received by Holdings following the ClosingDate (other than proceeds from any Cure Amount or the Second Purchase Price Payment (as defined in theInvestment Agreement)) from the sum of (i) equity contributed to its common capital, (ii) the sale of Equity Interests(other than Disqualified Stock) of Holdings or (iii) the incurrence of Indebtedness or issuance of Disqualified Stockof Holdings or any of its Subsidiaries that has been converted into or exchanged for such Equity Interests (other thanEquity Interests sold to, or Indebtedness held by, a Subsidiary of Holdings and except to the extent converted into orexchanged for Disqualified Stock), to the extent that such proceeds were not previously applied to make anInvestment pursuant to Section 6.04 , or a Restricted Payment pursuant to Section 6.07 ..“Available Revolving Commitment ” means as to any Revolving Lender, at any time of determination, anamount equal to such Revolving Lender’s Revolving Commitment at such timeminus such Revolving Lender’sRevolving Exposure at such time.“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date. “Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicableResolution 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 ofDirective 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law,regulation rule or requirement for such EEA Member Country from time to time which is described in the EUBail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relatingto the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherthan through liquidation, administration or other insolvency proceedings).“Bank Equity Interests ” means investments in non-voting participation certificates of CoBank, ACBacquired by the Borrower from CoBank, ACB.“Benchmark” means initially, with respect to Loans (other than Revolving Loans), the LIBO Rate and with respect to the Revolving Loans, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the LIBO Rate, the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12. “Benchmark Replacement” means either a Benchmark Replacement (LIBO) or a Benchmark Replacement (Non-LIBO), as the context so requires. “Benchmark Replacement (LIBO) ”meanswith respect to a Benchmark Transition Event (LIBO) or an Early Opt-In Election, the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection orrecommendation of a replacement rate or the mechanism for determining such a rate by the Relevant GovernmentalBody or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to-6-141683210_5 163765871_7 22-31184-1 C1.1 P28 |
the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark ReplacementAdjustment; provided that, in no event shall the Benchmark Replacement (LIBO) be deemed to be less than(i) 0.00%, in the case of the Revolving Loans and (ii) 0.75%, in the case of the Term B-1 Loans 0.75% per annum for the purposes of this Agreement.“Benchmark Replacement (Non-LIBO)” means, with respect to any Benchmark Transition Event (Non-LIBO) with respect to any Benchmark (other than the LIBO Rate), the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment (Non-LIBO); provided that, if such Benchmark Replacement (Non-LIBO) as so determined would be less than the Floor, such Benchmark Replacement (Non-LIBO) will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents “Benchmark Replacement Adjustment (LIBO) ”meanswith respect to any replacement of the LIBO Rate with an Unadjusted Benchmark Replacement the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the AdministrativeAgent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, ormethod for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with theapplicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and (ii) any evolving orthen-prevailing market convention for determining a spread adjustment, or method for calculating or determiningsuch spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted BenchmarkReplacement for U.S. dollar-denominated syndicated credit facilities at such time.“Benchmark Replacement Adjustment (Non-LIBO)” means, with respect to any replacement of the then-current Benchmark (other than the LIBO Rate) with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities. “Benchmark Replacement Conforming Changes ” means, with respect to any Benchmark Replacement, anytechnical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” thedefinition of “Interest Period,” timing and frequency of determining rates and making payments of interest and otheradministrative matters) that the Administrative Agent decides in its reasonable discretion may be appropriate toreflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof bythe Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agentdecides that adoption of any portion of such market practice is not administratively feasible or if the AdministrativeAgent determines that no market practice for the administration of the Benchmark Replacement exists, in such othermanner of administration as the Administrative Agent decides is reasonably necessary in connection with theadministration of this Agreement).“Benchmark Replacement Date ” means either a Benchmark Replacement Date (LIBO) or a Benchmark Replacement Date (Non-LIBO), as the context so requires. “Benchmark Replacement Date (LIBO) ” means the earlier to occur of the following events with respect to the LIBO Rate:(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event (LIBO) ,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the-7-141683210_5 163765871_7 22-31184-1 C1.1 P29 |
date on which the administrator of the LIBO Screen Rate permanently or indefinitely ceases to provide theLIBO Screen Rate; or(2)in the case of clause (3) of the definition of “Benchmark Transition Event (LIBO) ,” the date of the public statement or publication of information referenced therein.“Benchmark Replacement Date (Non-LIBO)” means the earliest to occur of the following events with respect to the then-current Benchmark (other than the LIBO Rate): (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event (Non-LIBO),” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event (Non-LIBO),” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date (Non-LIBO)” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark (other than the LIBO Rate) upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Event” means either a Benchmark Transition Event (LIBO) or a Benchmark Transition Event (Non-LIBO), as the context so requires. “Benchmark Transition Event (LIBO) ”means the occurrence of one or more of the following events, with respect to the LIBO Rate:(1)a public statement or publication of information by or on behalf of the administrator ofthe LIBO Screen Rate announcing that such administrator has ceased or will cease to provide the LIBOScreen Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there isno successor administrator that will continue to provide the LIBO Screen Rate;(2)a public statement or publication of information by the regulatory supervisor for theadministrator of the LIBO Screen Rate, the U.S. Federal Reserve System, an insolvency official withjurisdiction over the administrator for the LIBO Screen Rate, a resolution authority with jurisdiction overthe administrator for the LIBO Screen Rate or a court or an entity with similar insolvency or resolutionauthority over the administrator for the LIBO Screen Rate, which states that the administrator of the LIBOScreen Rate has ceased or will cease to provide the LIBO Screen Rate permanently or indefinitely,provided that, at the time of such statement or publication, there is no successor administrator that willcontinue to provide the LIBO Screen Rate; or(3)a public statement or publication of information by the regulatory supervisor for theadministrator of the LIBO Screen Rate announcing that the LIBO Screen Rate is no longer representative.“Benchmark Transition Event (Non-LIBO)” means the occurrence of one or more of the following events with respect to the then-current Benchmark (other than the LIBO Rate): (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently -8-141683210_5 163765871_7 22-31184-1 C1.1 P30 |
or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. For the avoidance of doubt, a “Benchmark Transition Event (Non-LIBO)” will be deemed to have occurred with respect to any Benchmark (other than the LIBO Rate) if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Start Date ”means (a) in the case of a Benchmark Transition Event, the earlier of (i)the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement orpublication of information of a prospective event, the 90th day prior to the expected date of such event as of suchpublic statement or publication of information (or if the expected date of such prospective event is fewer than 90days after such statement or publication, the date of such statement or publication) and (b) in the case of an EarlyOpt-in Election, the date specified by the Administrative Agent or the Requisite Lenders, as applicable, by notice xxxxx Xxxxxxxx, the Administrative Agent (in the case of such notice by the Requisite Lenders) and the Lenders.“Benchmark Unavailability Period (LIBO) ”means, if a Benchmark Transition Event (LIBO) and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBORate has not been replaced with a Benchmark Replacement (LIBO) , the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement (LIBO) has replaced the LIBO Rate for all purposes hereunder in accordance withSection 2.12 and (y) ending at the time that a BenchmarkReplacement (LIBO) has replaced the LIBO Rate for all purposes hereunder pursuant to Section 2.12 .. “Benchmark Unavailability Period (Non-LIBO)” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date (Non-LIBO) has occurred if, at such time, no Benchmark Replacement (Non-LIBO) has replaced the then-current Benchmark (other than the LIBO Rate) for all purposes hereunder and under any Loan Document in accordance with Section 2.12 and (y) ending at the time that a Benchmark Replacement (Non-LIBO) has replaced the then-current Benchmark (other than the LIBO Rate) for all purposes hereunder and under any Loan Document in accordance with Section 2.12. “Beneficial Ownership Certification ” means a certification regarding beneficial ownership required by theBeneficial Ownership Regulation.“Beneficial Ownership Regulation ” means 31 C.F.R § 1010.230.“Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title Iof 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”.-9-141683210_5 163765871_7 22-31184-1 C1.1 P31 |
“Big Boy Letter ” means a letter from a Lender acknowledging that (1) an assignee may have informationregarding Holdings and its Subsidiaries, their ability to perform the Obligations or any other material informationthat has not previously been disclosed to the Administrative Agent and the Lenders (“Excluded Information ”), (2)the Excluded Information may not be available to such Lender, (3) such Lender has independently and withoutreliance on any other party made its own analysis and determined to assign Term Loans to such assignee pursuant toSection 9.10(h) notwithstanding its lack of knowledge of the Excluded Information and (4) such Lender waives andreleases any claims it may have against the Administrative Agent and its Related Parties, such assignee, Holdingsand its Subsidiaries with respect to the nondisclosure of the Excluded Information, or otherwise in form andsubstance reasonably satisfactory to such assignee, the Administrative Agent and the assigning Lender.“ Board ” means the Board of Governors of the Federal Reserve System of the United States. “Bona Fide Debt Fund ” means any debt fund, investment vehicle, regulated bank entity or unregulatedlending entity that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loansand similar extensions of credit in the ordinary course of business for financial investment purposes which ismanaged, sponsored or advised by any Person controlling, controlled by or under common control with (a) anycompetitor of Holdings and/or any of its Subsidiaries or (b) any Affiliate of such competitor, but, in each case, withrespect to which no personnel involved with any investment in such Person or the management, control or operationof such Person (i) directly or indirectly makes, has the right to make or participates with others in making anyinvestment decisions, or otherwise causing the direction of the investment policies, with respect to such debt fund,investment vehicle, regulated bank entity or unregulated entity or (ii) has access to any information (other thaninformation that is publicly available) relating to Holdings or its Subsidiaries or any entity that forms a part of any oftheir respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not includeany Person that is a Disqualified Lender pursuant to clause (i) of the definition thereof.“Borrower ” has the meaning assigned to such term in the preamble to this Agreement.“Borrower Materials ” has the meaning assigned to such term in Section 5.01 ..“Borrowing ” means a Loan or group of Loans to the Borrower of the same Class and Type made (includingthrough a conversion or continuation) by the applicable Lenders on a single date and, with respect to any Eurodollar Loan or Term SOFR Loan, as to which a single Interest Period is in effect. “Borrowing Date ” means any Business Day specified in a notice pursuant toSection 2.02 as a date onwhich the Borrower requests Loans to be made hereunder.“Borrowing Request ” has the meaning assigned to such term in Section 2.02(a) ..“Business Day ” means (a) for all purposes other than as set forth in clause (b) below, any day other than aSaturday, Sunday or legal holiday on which banks in Charlotte, North Carolina and New York, New York, are openfor the conduct of their commercial banking business, and (b) (i ) with respect to all notices and determinations in connection with, and payments of principal and interest on, any Eurodollar Loan, any day that is a Business Daydescribed in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the Londoninterbank market and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, any Term SOFR Loan, any day that is a Business Day described in clause (a) and that is also a day that the NYFRB is open .. “Capital Expenditures ” means, for any period, any and all expenditures made by Holdings or any of itsSubsidiaries in such period for assets added to or reflected in its property, plant and equipment accounts or othersimilar capital asset accounts or comparable items or any other capital expenditures that are, or should be, set forthas “additions to plant, property and equipment” on the financial statement prepared in accordance with GAAP,whether such asset is purchased for cash or financed as an account payable or by the incurrence of Indebtedness,accrued as a liability or otherwise including, without limitation, as a result of incurring any Capital LeaseObligations.-10-141683210_5 163765871_7 22-31184-1 C1.1 P32 |
“Capital Lease Obligations ” means all monetary or financial obligations of Holdings or any of itsSubsidiaries under any leasing or similar arrangement conveying the right to use real or personal property, or acombination thereof, which, in accordance with GAAP, would or should be classified and accounted for as capital orfinance leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordancewith GAAP and the stated maturity thereof shall be the date of the last payment of rent or any other amount dueunder such lease prior to the first date on which such lease may be terminated by the lessee without payment of apenalty.“Cash Collateralize ” means, to pledge and deposit with, or deliver to the Administrative Agent, or directlyto the applicable Issuing Bank (with notice thereof to the Administrative Agent), for the benefit of one or more ofthe Issuing Banks, the Swingline Lender or the Revolving Lenders, as collateral for LC Exposure or obligations ofthe Revolving Lenders to fund participations in respect of LC Exposure or Swingline Loans, cash or deposit accountbalances or, if the Administrative Agent and the applicable Issuing Bank and the Swingline Lender shall agree, intheir sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactoryto the Administrative Agent, such Issuing Bank and the Swingline Lender, as applicable. “Cash Collateral ” shallhave a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other creditsupport.“Cash Equivalents ” means:(a)marketable direct obligations issued by, or unconditionally guaranteed by, the UnitedStates Government or issued by any agency or instrumentality thereof and backed by the full faith andcredit of the United States of America, in each case maturing within one year from the date of acquisitionthereof;(b)marketable direct obligations issued by any State of the United States of America or anypolitical subdivision of any such State or any public instrumentality thereof maturing within one year fromthe date of acquisition thereof and, at the time of acquisition, having one of the two highest ratingsobtainable from either S&P or Xxxxx’x or carrying an equivalent rating by a nationally recognizedstatistical ratings organization (within the meaning of Section 3(62) of the Exchange Act), if both of the twonamed rating agencies cease publishing ratings of commercial paper issuers generally);(c)commercial paper issued by a corporation (other than an Affiliate of the Borrower), at thetime of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Xxxxx’x, or carrying anequivalent rating by a nationally recognized statistical ratings organization (within the meaning of Section3(62) of the Exchange Act), if both of the two named rating agencies cease publishing ratings ofcommercial paper issuers generally), and in each case maturing within one year after the date of acquisition;(d)time deposits, demand deposits, certificates of deposit, Eurodollar time deposits orbankers’ acceptances maturing within one year from the date of acquisition thereof or overnight bankdeposits, in each case, issued by any bank organized under the laws of the United States of America or anyState thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date ofacquisition thereof combined capital and surplus of not less than $500.0 million;(e)repurchase obligations with a term of not more than 90 days for underlying securities ofthe types described in clause (a) above entered into with any bank meeting the qualifications specified inclause (d) above;(f)securities issued and fully guaranteed by any state, commonwealth or territory of theUnited States of America, any member of the European Union or, in each case, by any political subdivisionor taxing authority thereof, which are unconditionally guaranteed as a full faith and credit obligation of suchgovernment with maturities of 24 months or less from the date of acquisition;(g)investments in money market funds which invest substantially all their assets in securitiesof the types described in clauses (a) through (f) above;-11-141683210_5 163765871_7 22-31184-1 C1.1 P33 |
(h)[reserved];(i)[reserved];(j)investments in so-called “auction rate securities” rated AAA by S&P or Aaa by Xxxxx’sand which have an interest rate reset date not more than 90 days from the date of acquisition thereof.“Cash Management Agreement ” means any agreement to provide cash management services, includingtreasury, depository, overdraft, credit or debit card (including non-card electronic payables), electronic fundstransfer and other cash management arrangements.“Cash Management Bank ” means any Person that, (a) at the time it enters into a Cash ManagementAgreement with a Loan Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of theAdministrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (includingon the Closing Date), is a party to a Cash Management Agreement with a Loan Party, in each case in its capacity as aparty to such Cash Management Agreement.“Cash Management Obligations ” means all existing or future payment and other obligations owing by anyLoan Party under any Cash Management Agreement (which such Cash Management Agreement is permittedhereunder) with any Cash Management Bank.“CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,as amended.“CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability InformationSystem List.“Change in Control ” means the occurrence of any of the following:(a)Holdings becomes aware of (by way of a report or any other filing pursuant to Section13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successorprovision) (including any group acting for the purpose of acquiring, holding or disposing of securities(within the meaning of Rule 13d-5(b)(1) under the Exchange Act)) other than any of the Permitted Holders,in a single transaction or in a related series of transactions, by way of merger, consolidation or otherbusiness combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under theExchange Act, or any successor provision) of more than 40% of the total voting power of the Voting Stockof Holdings; or(b)the Borrower ceases to be a wholly-owned Subsidiary of Holdings.For the purposes of clause (a) of this definition the Contingent Payment Rights (and any securities into which suchContingent Payment Rights are converted) shall be treated as Voting Stock of Holdings.“Change in Law ” means the occurrence, after the Closing Date, of any of the following: (a) the adoption ortaking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in theadministration, interpretation, implementation or application thereof by any Governmental Authority or (c) themaking or issuance of any request, rule, guideline or directive (whether or not having the force of law) by anyGovernmental Authority;provided that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx XxxxXxxxxx Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued inconnection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for InternationalSettlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the UnitedStates or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a“Change in Law”, regardless of the date enacted, adopted, implemented or issued.-12-141683210_5 163765871_7 22-31184-1 C1.1 P34 |
“Class ” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loanscomprising such Borrowing, are Revolving Loans, the Initial Term Loan, the Term B-1 Loans, Incremental TermLoans, Incremental Revolving Loans, Extended Revolving Loans, Extended Term Loans, Refinancing RevolvingLoans, Refinancing Term Loans or Swingline Loans, and when used in reference to any Commitment, refers towhether such Commitment is a Revolving Commitment, Incremental Revolving Commitment, Incremental TermCommitment, Refinancing Revolving Commitment, Refinancing Term Commitment or Extended RevolvingCommitment, and when used in reference to any Lender, refers to whether such Lender is a Revolving Lender, anInitial Term Lender, a Term B-1 Lender, an Incremental Term Lender, a Lender holding Incremental RevolvingCommitments and/or Incremental Revolving Loans, a Lender holding Extended Revolving Commitments and/orExtended Revolving Loans, a Refinancing Term Lender, or a Lender holding Refinancing Revolving Commitmentsand/or Refinancing Revolving Loans. “Closing Date ” means October 2, 2020.“Closing Date Purchase Price Payment ” means the Initial Purchase Price Payment (as defined in theInvestment Agreement).“Closing Date Refinancing ” means the repayment in full (or the termination, discharge or defeasance infull) of all outstanding indebtedness under (including the release of all guarantees, liens, security interests, pledges,mortgages and other encumbrances with respect thereto, to the extent applicable) the Existing Credit Agreement andthe Existing Indenture, together with any premium accrued and unpaid interest thereon and any fees and expenseswith respect thereto.“Closing Date Transactions ” means, collectively, the transactions to occur pursuant to the InvestmentAgreement, the Loan Documents and the Senior Secured Notes Documents that are contemplated pursuant to suchagreements to be consummated on the Closing Date, including (a) the making of the Closing Date Purchase PricePayment and consummation of the Initial Closing (as defined in the Investment Agreement); (b) the execution,delivery and performance of the Loan Documents, the creation of the Liens pursuant to the Security Documents, andthe initial borrowings hereunder and the use of proceeds thereof; (c) the execution, delivery and performance of theSenior Secured Notes Documents and the issuance of the Senior Secured Notes; (d) the Closing Date Refinancing;and (e) the payment of all fees and expenses to be paid and owing in connection with the foregoing.“CoBank ” means CoBank, ACB, a federally chartered instrumentality of the United States.“Code ” means the Internal Revenue Code of 1986, as amended from time to time.“Collateral ” has the meaning assigned to such term in the Security Agreement or the Pledge Agreement (asapplicable), or, as the context requires, in any other applicable Security Document and shall include all MortgagedProperty and all other assets a Lien on which is granted or purported to be granted to secure the Obligations.“Collateral” shall also include the “Trust Property” or similar defined term as such terms are defined in theMortgages.“Commitment ” means, with respect to any Lender, such Lender’s Initial Term Commitment, Term B-1Commitment, Revolving Commitment, Refinancing Revolving Commitment, Refinancing Term Commitment,Incremental Revolving Commitment, Incremental Term Commitment, Extended Revolving Commitment or anycombination thereof (as the context requires). “Commitment Fee ” has the meaning assigned to such term in Section 2.10(a) ..“Commitment Fee Average Daily Amount ” has the meaning assigned to such term in Section 2.10(a) ..“Commitment Fee Termination Date ” has the meaning assigned to such term in Section 2.10(a) ..“Commitment Letter ” means that certain commitment letter dated September 13, 2020 among Holdings,JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Securities, LLC, Xxxxx Fargo-13-141683210_5 163765871_7 22-31184-1 C1.1 P35 |
Bank, N.A., Xxxxxxx Sachs Bank USA, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman IslandsBranch, Deutsche Bank Securities Inc., TD Securities (USA) LLC and The Toronto-Dominion Bank, New YorkBranch as amended or supplemented.“Commitment Percentage ” means the percentage of the Total Revolving Commitment represented by suchLender’s Revolving Commitment.“Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).“Communications Laws ” has the meaning assigned to such term in Section 3.22(a) ..“Communications Licenses ” has the meaning assigned to such term in Section 3.22(a) ..“Company Material Adverse Effect ” has the meaning assigned to the term “Company Material AdverseEffect” in the Investment Agreement as in effect on September 13, 2020.“Compliance Certificate ” has the meaning assigned to such term inSection 5.01(b) and shall besubstantially in the form of Exhibit C ..“Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by netincome (however denominated) or that are franchise Taxes or branch profits Taxes.“Consolidated Current Assets ” means, as of any date of determination, the sum of the total assets ofHoldings and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformitywith GAAP excluding cash and Cash Equivalents, amounts related to current or deferred taxes based on income orprofits, assets held for sale (other than assets that, were they not classified as assets held for sale, would otherwise beclassified as “Consolidated Current Assets”), loans (permitted) to third parties, pension assets, deferred bank fees,derivative financial instruments and any assets in respect of Hedging Agreements, and excluding the effects ofadjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accountingas the case may be, in relation to the Closing Date Transactions or any consummated acquisition.“Consolidated Current Liabilities ” means, as of any date of determination, the total liabilities of Holdingsand its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity withGAAP, excluding (A) the current portion of any Funded Debt, (B) the current portion of interest, (C) accruals forcurrent or deferred taxes based on income or profits, (D) accruals of any costs or expenses related to restructuringreserves or severance, (E) Revolving Loans, Swingline Loans and L/C Exposure under this Agreement or any otherrevolving loans, swingline loans and letter of credit obligations under any other revolving credit facility, (F) thecurrent portion of any Capital Lease Obligation, (G) liabilities in respect of unpaid earn-outs, (H) the current portionof any other long-term liabilities, (I) accrued litigation settlement costs, (J) any liabilities in respect of HedgingAgreements, (K) bonuses, pension and other post-retirement benefit obligations and (L) accruals, if any, oftransaction costs resulting from the Closing Date Transactions, and, furthermore, excluding the effects ofadjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting,as the case may be, in relation to the Closing Date Transactions or any consummated acquisition.“Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period,(a)plus all amounts deducted in arriving at Consolidated Net Income for such period inrespect of, without duplication, (i) Consolidated Interest Expense, amortization or write-off of debt discountand non-cash expense incurred in connection with equity compensation plans, (ii) foreign, federal, state andlocal income Taxes, (iii) charges for depreciation of fixed assets and amortization of intangible assets, (iv)all non-cash charges (excluding any non-cash charge to the extent that it represents an accrual of or reservefor cash charges in any future period or amortization of a prepaid cash expense that was paid in a priorperiod) and (v) Transaction Fees as specified in reasonable detail;(b)minus (in the case of gains) orplus (in the case of losses) gain or loss on any Dispositionduring such period;-14-141683210_5 163765871_7 22-31184-1 C1.1 P36 |
(c)plus extraordinary loss (as defined by GAAP) during such period;(d)plus the aggregate amount of all (x) unusual and non-recurring charges or expenses(including, for the avoidance of doubt, relating to storm damage and other extreme weather events)deducted in arriving at Consolidated Net Income for such period and not otherwise included in clause (a)above (y) restructuring and similar charges, fees, costs (including severance costs), expenses and reservesdeducted in arriving at Consolidated Net Income for such period and not otherwise included in clause (a)above and (z) the amount of any cost savings, operating expense reductions, operating enhancements andother synergies (net of the amount of actual amounts realized) from the Investment Transactions, and anymergers, acquisitions, Investments, cost savings initiatives, operating improvements, restructurings, costsavings and similar initiatives, actions or events and that are reasonably expected to be realized within 24months of the date of the relevant event;provided that the aggregate amount permitted to be added backpursuant to this clause (d)(z) for any Test Period shall not exceed 20% of Consolidated EBITDA aftergiving effect to such adjustments; provided further , that each such adjustment described in this clause (d)(z)shall be set forth in a certificate signed by a Financial Officer of the Borrower and delivered to theAdministrative Agent;(e)plus, solely for purposes of calculating the Cumulative Credit and without duplication ofany amounts included under clause (i) of paragraph (a) above, Fixed Charges; and(f)minus the sum of (x) interest income, (y) extraordinary income or gains as defined byGAAP and (z) all non-cash items increasing Consolidated Net Income, in each case, for such period.For purposes of this definition, Investments, acquisitions, Dispositions, mergers, amalgamations,consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect xxxx operating unit of a business, and (at the Borrower’s election) any operating improvements, restructurings, costsavings and similar initiatives, actions or events, that Holdings or any of its Subsidiaries has made during the TestPeriod or subsequent to such Test Period and on or prior to or simultaneously with the date for which the calculationof Consolidated EBITDA is made shall be calculated on a pro forma basis assuming that all such mergers,acquisitions, dispositions, amalgamations, consolidations, Investments, cost savings initiatives, operatingimprovements, restructurings, cost savings and similar initiatives, actions or events and discontinued operations hadoccurred on the first day of the Test Period; provided that, notwithstanding any classification of any Person,business, assets or operations as discontinued operations because a definitive agreement for the sale, transfer orother disposition in respect thereof has been entered into, the Borrower shall not make such computations on a proforma basis for any such classification for any period until such sale, transfer or other disposition has beenconsummated.“Consolidated First Lien Indebtedness ” means, at a particular date, the aggregate principal amount ofConsolidated Indebtedness at such date that, at such date, is secured by a Lien on assets of Holdings or any of itsSubsidiaries that ispari passu with the Liens securing the Obligations, net of (i) prior to the Unlimited Cash NettingDate, the lesser of (a) the amount of Qualified Cash and Cash Equivalents and (b) $50.0 million and (ii) on and afterthe Unlimited Cash Netting Date, the amount of Qualified Cash and Cash Equivalents.“Consolidated First Lien Leverage Ratio ” means, at a particular date the ratio of (a) Consolidated First LienIndebtedness on such date to (b) Consolidated EBITDA for the Test Period most recently ended (calculated on a proforma basis as described in the definition of “Consolidated EBITDA”). In the event that Holdings, the Borrower orany Subsidiary thereof incurs, repays, repurchases or redeems any Indebtedness (other than fluctuations in revolvingborrowings in the ordinary course of business) subsequent to the commencement of the period for which theConsolidated First Lien Leverage Ratio is being calculated, but prior to or in connection with the event for which thecalculation of the Consolidated First Lien Leverage Ratio is made, then the Consolidated First Lien Leverage Ratioshall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtednessas if the same had occurred at the beginning of the applicable four-quarter period.“Consolidated Indebtedness ” means, at a particular date, the sum of (without duplication) all debt forborrowed money of Holdings and its Subsidiaries determined on a consolidated basis in accordance with GAAP. For-15-141683210_5 163765871_7 22-31184-1 C1.1 P37 |
purposes of calculating any financial ratio under this Agreement, including the Consolidated First Lien LeverageRatio, the Consolidated Senior Secured Ratio and the Total Net Leverage Ratio, all obligations owed by any LoanParty or any of their respective Subsidiaries under the Subordinated Notes shall be excluded from “ConsolidatedIndebtedness.”“Consolidated Interest Expense ” means, with respect to Holdings and its Subsidiaries on a consolidatedbasis for any period, the sum of (a) gross interest expense for such period, including (i) the amortization of debtdiscounts, (ii) the amortization of all fees (including fees with respect to Hedging Agreements) payable inconnection with the incurrence of Indebtedness to the extent included in interest expense and (iii) the portion of anypayments or accruals with respect to Capital Lease Obligations allocable to interest expense, and (b) capitalizedinterest, but excluding non-cash interest expense booked with respect to (i) tax reserves, (ii) Hedging Agreementsand (iii) the refinancing of any Indebtedness (including any Permitted Refinancing).For the purposes of this Agreement,in the event that any underwriting fees paid in connection with theoriginal issuance of the Senior Secured Notes or the entry into this Agreement on the Closing Date, or the fees (orany portion thereof) referred to in any fee letter related to the foregoing or any similar fee paid in connection withany Permitted Refinancing is required to be expensed in the Fiscal Quarter in which such fee is paid, rather thanbeing capitalized and amortized over the term of the respective Indebtedness associated therewith, the entire amountof such fee shall not be included in Consolidated Interest Expense for the Fiscal Quarter in which such fee is paid,but instead shall be included in the calculation of Consolidated Interest Expense for such Fiscal Quarter andsucceeding Fiscal Quarters as if such fee was capitalized and amortized over the term of such Indebtedness. For theavoidance of doubt, Consolidated Interest Expense shall include interest expense and capitalized interest withrespect to the Subordinated Notes, to the extent outstanding at any time during the applicable period.“Consolidated Net Income ” means, for any period, the net income or loss of Holdings and its Subsidiariesfor such period determined on a consolidated basis in accordance with GAAP;provided that there shall be excludedtherefrom, without duplication:(a)the income or loss of any Person (other than consolidated Subsidiaries of Holdings) inwhich any other Person (other than Holdings or any of its Subsidiaries) has a joint interest, except to theextent of the amount of dividends or other distributions actually paid to Holdings or any of its Subsidiariesby such Person during such period;(b)the cumulative effect of a change in accounting principles during such period;(c)any net after-tax income (loss) from discontinued operations and any net after-tax gainsor losses on disposal of discontinued operations;(d)the income or loss of any Person accrued prior to the date it becomes a Subsidiary or ismerged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired byHoldings or any of its Subsidiaries; and(e)the income of any consolidated Subsidiary to the extent that declaration of payment ofdividends or similar distributions by that Subsidiary of that income is not at the time permitted by operationof the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule orgovernmental regulation applicable to that Subsidiary.“Consolidated Senior Secured Indebtedness ” means, at a particular date, the aggregate principal amount ofConsolidated Indebtedness at such date that, at such date, is secured by a Lien on assets of Holdings or any of itsSubsidiaries, net of (i) prior to the Unlimited Cash Netting Date, the lesser of (a) the amount of Qualified Cash andCash Equivalents and (b) $50.0 million and (ii) on and after the Unlimited Cash Netting Date, the amount ofQualified Cash and Cash Equivalents.“Consolidated Senior Secured Leverage Ratio ” means, at a particular date the ratio of (a) ConsolidatedSenior Secured Indebtedness on such date to (b) Consolidated EBITDA for the Test Period most recently ended-16-141683210_5 163765871_7 22-31184-1 C1.1 P38 |
(calculated on a pro forma basis as described in the definition of “Consolidated EBITDA”). In the event thatHoldings, the Borrower or any Subsidiary thereof incurs, repays, repurchases or redeems any Indebtedness (otherthan fluctuations in revolving borrowings in the ordinary course of business) subsequent to the commencement of theperiod for which the Consolidated Senior Secured Leverage Ratio is being calculated but prior to or in connectionwith the event for which the calculation of the Consolidated Senior Secured Leverage Ratio is made, then theConsolidated Senior Secured Leverage Ratio shall be calculated giving pro forma effect to such incurrence,repayment, repurchase or redemption of Indebtedness as if the same had occurred at the beginning of the applicablefour-quarter period.“Consolidated Working Capital ” means, at any date of determination, the excess of Consolidated CurrentAssets minus Consolidated Current Liabilities.“Contested Collateral Lien Conditions ” means with respect to any proceeding instituted contesting anyamount payable by any Loan Party or any of its Subsidiaries, such proceeding operates to stay the sale or forfeitureof any portion of the Collateral on account of such Lien.“Contingent Payment Rights ” means the contingent payment right which shall be automatically convertedinto shares of Holdings’ common stock subject to the terms and conditions of the contingent payment rightagreement to be entered into by the Investor and Holdings.“Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of themanagement or policies of a Person, whether through the ownership of voting securities, by contract or otherwise,and “controlling ” and “controlled ” have meanings correlative thereto.“Controlled Investment Affiliate ” means, with respect to any Person, any fund or investment vehicle that (i)is organized by such Person for the purpose of making investments in one or more companies and (ii) is controlledby, or under common control with, such Person.“Covered Party ” has the meaning assigned to such term in Section 9.24 ..“Credit Agreement Refinancing Indebtedness ” means Indebtedness issued, incurred or otherwise obtained(including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew,replace, repurchase, retire or refinance, in whole or part, Revolving Loans, Initial Term Loans, Term B-1 Loans,Incremental Term Loans, Extended Term Loans or any then existing Credit Agreement Refinancing Indebtedness(“Refinanced Debt ”); provided that (i) such Indebtedness has a maturity no earlier than, and a Weighted AverageLife to Maturity equal to or greater than, the Refinanced Debt, (ii) such Indebtedness shall not have a greaterprincipal amount than the principal amount of the related Refinanced Debt plus accrued interest, fees, premiums (ifany) and penalties thereon and reasonable fees and expenses associated with the refinancing, (iii) such Indebtednessshall not be secured by any assets that do not constitute Collateral, (iv) such Indebtedness is not at any timeguaranteed by any Subsidiaries of the Borrower other than Subsidiary Loan Parties, (v) such Indebtedness shall beunsecured or rank pari passu (without regard to the control of remedies) or junior in right of payment and securitywith any Obligations and, if secured on a junior lien basis, shall be subject to a Junior Lien Intercreditor Agreement,(vi) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accruedinterest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such CreditAgreement Refinancing Indebtedness is issued, incurred or obtained, (vii) such Indebtedness shall have such pricing(including interest rate margins, rate floors, fees, premiums and funding discounts) and optional prepayment terms asmay be agreed by the Borrower and the Additional Refinancing Lenders thereof, and (viii) the terms and conditionsof such Indebtedness (except as otherwise provided in clause (vii) above) are substantially identical to, or are notmaterially more favorable, taken as a whole, to the lenders or holders providing such Indebtedness (in the good faithdetermination of the Borrower) than those applicable to the Refinanced Debt being refinanced (except for covenantsor other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of suchIndebtedness). “Credit Event ” has the meaning assigned to such term in Section 4.02 ..-17-141683210_5 163765871_7 22-31184-1 C1.1 P39 |
“Cumulative Credit ” means on any date (a) $100,000,000plus (b) 100% of Holdings’ ConsolidatedEBITDA on a cumulative basis during the period (taken as one accounting period and without giving pro formaeffect to the events described in the last paragraph of Consolidated EBITDA) from October 1, 2020 to the last day ofHoldings’ last Fiscal Quarter ending prior to such date for which internal financial statements are available less 1.75times Holdings’ and its Subsidiaries’ (without duplication) Fixed Charges for the same period,minus (c) theaggregate amount of Subject Payments paid prior to such date,plus (d) Declined Proceedsplus (e) RetainedProceeds.“Cure Amount ” has the meaning assigned to such term in Section 7.02(a) ..“Cure Expiration Date ” has the meaning assigned to such term in Section 7.02(a) ..“Cure Right ” has the meaning assigned to such term in Section 7.02(a) ..“Debt Fund Affiliate Lender ” shall mean entities managed by any of the Sponsors, including funds advisedby their affiliated management companies that are primarily engaged in, or advise funds or other investment vehiclesthat are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similarextensions of credit or securities in the ordinary course and for which no personnel making investment decisions inrespect of any equity fund which has a direct or indirect equity investment in Holdings, the Borrower or theSubsidiaries has the right to make any investment decisions.“Debt Incurrence ” has the meaning assigned to such term in Section 2.05(c)(i) ..“Debtor Relief Laws ” means the Bankruptcy Code of the United States of America, and all otherliquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,receivership, insolvency, reorganization, or similar Applicable Laws with respect to debtor relief of the UnitedStates or other applicable jurisdictions from time to time in effect.“Declined Proceeds ” has the meaning assigned to such term in Section 2.05(d) ..“Default ” means any Event of Default, any Event of Termination and any event or condition which uponnotice, lapse of time or both would constitute an Event of Default or Event of Termination.“Default Right ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.“Defaulting Lender ” means, subject toSection 2.23(g) , any Lender that (a) has failed to (i) fund all or anyportion of the Revolving Loans or any Term Loan required to be funded by it hereunder within two Business Days ofthe date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent xxxxxx Xxxxxxxx in writing that such failure is the result of such Xxxxxx’s determination that one or more conditionsprecedent to funding (each of which conditions precedent, together with any applicable default, shall be specificallyidentified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, theSwingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect ofits participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) hasnotified the Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender in writing that it doesnot intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unlesssuch writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that suchposition is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent,together with any applicable default, shall be specifically identified in such writing or public statement) cannot besatisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or theBorrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with itsprospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuantto this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d)has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any DebtorRelief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit-18-141683210_5 163765871_7 22-31184-1 C1.1 P40 |
of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDICor any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-InAction;provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition ofany equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority solong as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction ofcourts within the United States or from the enforcement of judgments or writs of attachment on its assets or permitsuch Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreementsmade with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender underany one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and suchLender shall be deemed to be a Defaulting Lender (subject toSection 2.23(g)) ) upon delivery of written notice ofsuch determination to the Borrower, each Issuing Bank, the Swingline Lender and each Lender.“Designated Non-Cash Consideration ” means the Fair Market Value of non-cash consideration received byHoldings, the Borrower or one of its Subsidiaries in connection with a Disposition that is so designated asDesignated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forthsuch valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent disposition ofsuch Designated Non-Cash Consideration.“Destruction ” means any and all damage to, or loss or destruction of, or loss of title to, all or any portion ofthe Property of Holdings or any of its Subsidiaries.“Disposition ” means any direct or indirect sale, transfer, lease, conveyance or other disposition by Holdingsor any of its Subsidiaries of any of its property or assets, including any sale or issuance of any Equity Interests of anySubsidiary of the Borrower (other than directors’ qualifying shares and shares issued to foreign nationals to theextent required by law), and “Dispose” and “Disposed” have meanings correlative thereto.“Disqualified Lender ” means (i) the persons identified as “Disqualified Institutions” in writing to theArrangers by the Borrower on or prior to September 13, 2020, (ii) any competitor of Holdings and its Subsidiariesidentified in writing to the Arrangers on or prior to September 13, 2020 and (iii) any competitor of Holdings and itsSubsidiaries identified in writing to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if afterthe Closing Date) on or prior to the earlier of (x) completion of syndication of the Initial Term Loans and (y) 60 daysafter the Closing Date; provided that a “competitor” shall not include any Bona Fide Debt Fund; provided, further,that no updates to the list of Disqualified Lenders shall be deemed to retroactively disqualify any parties that havepreviously acquired an assignment or participation interest in respect of the Loans or the Commitments. TheBorrower shall deliver any list of Disqualified Lenders delivered after the Closing Date and any updates,supplements or modifications thereto after the Closing Date to the Administrative Agent and any such updates,supplements or modifications thereto shall only become effective one (1) Business Day after such update,supplement or modification has been sent to the Administrative Agent.“Disqualified Stock ” means any Equity Interests that, by its terms (or by the terms of any security intowhich it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon thehappening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, oris redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 123 days after theLatest Maturity Date; provided , however, that only the portion of Equity Interests which so matures or is mandatorilyredeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to suchdates will be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interests thatwould constitute Disqualified Stock solely because the holders thereof have the right to require the issuer of suchEquity Interests to repurchase such Equity Interests upon the occurrence of a change in control or an asset sale willnot constitute Disqualified Stock if the terms of such Equity Interests provide that the issuer of such Equity Interestsmay not repurchase or redeem any such Equity Interests pursuant to such provisions unless such repurchase orredemption complies withSection 6.07 .. The term “Disqualified Stock” will also include any options, warrants orother rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or requiredto be redeemed, prior to the date that is 123 days after the Latest Maturity Date. Notwithstanding the foregoing oranything to the contrary herein, Disqualified Stock shall not include any Preferred Stock issued in connection withthe Investment Transactions (including, but not limited to, the Series A preferred stock) any accrual of interest orpayment due on account of or pursuant thereto.-19-141683210_5 163765871_7 22-31184-1 C1.1 P41 |
“Dollars ” or “$” means lawful money of the United States of America.“Domestic Subsidiary ” means any Subsidiary of the Borrower that is not a Non-U.S. Subsidiary.“Early Opt-in Election ”means, if a then-current Benchmark is the LIBO Rate, the occurrence of: (1)(i) a determination by the Administrative Agent or (ii) a notification by the RequisiteLenders to the Administrative Agent (with a copy to the Borrower) that the Requisite Lenders havedetermined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or thatinclude language similar to that contained inSection 2.12 are being executed or amended, as applicable, toincorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and(2)(i) the election by the Administrative Agent or (ii) the election by the Requisite Lendersto declare that an Early Opt-in Election has occurred and the provision, as applicable, by the AdministrativeAgent of written notice of such election to the Borrower and the Lenders or by the Requisite Lenders ofwritten notice of such election to the Administrative Agent.“Earn-Out Obligation ” means any contingent consideration based on future operating performance of theacquired entity or assets or other purchase price adjustment or indemnification obligation, payable following theconsummation of an acquisition based on criteria set forth in the documentation governing or relating to suchacquisition.“EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEAMember Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in anEEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) anyfinancial institution established in an EEA Member Country which is a subsidiary of an institution described inclauses (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 publicadministrative authority of any EEA Member Country (including any delegee) having responsibility for theresolution of any credit institution or investment firm established in any EEA Member Country.“Electronic Record ” has the meaning assigned to that term in, and shall be interpreted in accordance with,15 U.S.C. 7006.“Electronic Signature ” has the meaning assigned to that term in, and shall be interpreted in accordance with,15 U.S.C. 7006.“Environment ” means ambient air, surface water and groundwater (including potable water, navigablewater and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, or as otherwisedefined in any applicable Environmental Law.“Environmental Claim ” means any written accusation, allegation, notice of violation, claim, demand, order,directive, cost recovery action or other cause of action by, or on behalf of, any Governmental Authority or any otherPerson for damages, injunctive or equitable relief, personal injury (including sickness, disease or death), RemedialAction costs, tangible or intangible property damage, natural resource damages, nuisance, pollution, any adverseeffect on the Environment caused by any Hazardous Material, or for fines, penalties or restrictions, resulting from orbased upon: (a) the existence, or the continuation of the existence, of a Release (including sudden or non-sudden,accidental or non-accidental Releases); (b) exposure to any Hazardous Material; (c) the presence, use, handling,transportation, storage, treatment or disposal of any Hazardous Material; or (d) the violation or alleged violation ofany Environmental Law or Environmental Permit.-20-141683210_5 163765871_7 22-31184-1 C1.1 P42 |
“Environmental Laws ” means any and all applicable treaties, laws (including common law), rules,regulations, codes, ordinances, orders, decrees, judgments, injunctions or binding agreements issued, promulgated orentered into by any Governmental Authority, relating in any way to the protection, preservation or reclamation of theEnvironment, the management, Release or threatened Release of, or exposure to, any Hazardous Material.“Environmental Liability ” means any liability, contingent or otherwise (including, but not limited to, anyliability for damages, natural resource damage, costs of environmental remediation, administrative oversight costs,fines, penalties or indemnities), of any member of Holdings and its Subsidiaries, directly or indirectly resulting fromor based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials or (d) the Release orthreatened Release of any Hazardous Materials into the Environment.“Environmental Permit ” means any permit, approval, authorization, certificate, license, variance, filing orpermission required by or from any Governmental Authority pursuant to any Environmental Law.“Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limitedliability company, beneficial interests in a trust or other equity ownership interests in a Person.“Equity Rights ” means all securities convertible or exchangeable for Equity Interests and all warrants,options or other rights to purchase or subscribe for any Equity Interests, whether or not presently convertible,exchangeable or exercisable.“ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended fromtime to time.“ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with any LoanParty, is treated as a single employer under Sections 414(b) or (c) of the Code, and for the purpose of Section 302 ofERISA and/or Section 412, 4971, 4977, 4980D, 4980E and/or each “applicable section” under Section 414(t)(2) ofthe Code, within the meaning of Section 414(b), (c), (m) or (o) of the Code.“ERISA Event ” means (a) any “reportable event,” as defined in Section 4043(c) of ERISA or theregulations issued thereunder, with respect to a Pension Plan (other than an event for which the 30-day notice periodis waived by regulation); (b) the failure to make any (i) “minimum required contribution” (as defined in Section 430of the Code or Section 303 of ERISA) to any Pension Plan, whether or not waived or (ii) required contribution to aMultiemployer Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of anapplication for a waiver of the minimum funding standard with respect to any Pension Plan; (d) the incurrence byany Loan Party or ERISA Affiliate of any liability under Title IV of ERISA with respect to any Pension Plan, otherthan for PBGC premiums due but not delinquent under Section 4007 of ERISA; (e) the receipt by any Loan Party orERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate anyPension Plan, to appoint a trustee to administer any Pension Plan, or to take any other action with respect to aPension Plan that could result in material liability to a Loan Party or a Subsidiary, or the occurrence of any event orcondition which could reasonably be expected to constitute grounds under ERISA for the termination of or theappointment of a trustee to administer, any Pension Plan; (f) the incurrence by any Loan Party or ERISA Affiliate ofany liability with respect to the withdrawal or partial withdrawal (including under Section 4062(e) of ERISA) fromany Pension Plan or Multiemployer Plan; (g) the receipt by a Loan Party or ERISA Affiliate of any noticeconcerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected tobe, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the making of any amendment toany Pension Plan which could result in the imposition of a lien or the posting of a bond or other security or anincrease in the minimum annual contribution to any Pension Plan resulting from a determination by such PensionPlan’s actuary that it is an at risk plan within the meaning of Section 430(i) of the Code or Section 303(i) of ERISA,or an increase in the rate of required contributions to any Multiemployer Plan resulting from a determination thatsuch Multiemployer Plan is in endangered or critical status within the meaning of Section 432 of the Code or Section305 of ERISA; or (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 ofthe Code or Section 406 of ERISA) which could result in liability to a Loan Party or any of the Subsidiaries.-21-141683210_5 163765871_7 22-31184-1 C1.1 P43 |
“EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the LoanMarket Association (or any successor thereto), as in effect from time to time.“Eurodollar Borrowing ” means a Borrowing comprised of Eurodollar Loans.“Eurodollar Loan ” means any Loan bearing interest at a rate determined by reference to the Adjusted LIBORate in accordance with the provisions of Article II ..“Event of Default ” has the meaning assigned to such term in Section 7.01 ..“Event of Termination ” has the meaning assigned to such term in Section 7.01 ..“Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules andregulations of the SEC promulgated thereunder, as amended.“Excluded Debt Issuance ” means any Indebtedness permitted to be incurred pursuant toSection 6.01(a) other than Credit Agreement Refinancing Indebtedness.“Excluded Subsidiary ” means:(a)each Domestic Subsidiary which is an Immaterial Subsidiary (for so long as suchDomestic Subsidiary remains an Immaterial Subsidiary);(b)each Domestic Subsidiary that is not a Wholly Owned Domestic Subsidiary (for so longas such Subsidiary remains a non-Wholly Owned Domestic Subsidiary);(c)each Subsidiary that is a Foreign Subsidiary;(d)each Unrestricted Subsidiary;(e)each Domestic Subsidiary that is prohibited or restricted by applicable law, rule orregulation or by any contractual obligation existing on the Closing Date (or, if later, the date that suchPerson becomes a Subsidiary) from guaranteeing the Obligations (in the case of any such prohibition orrestriction under any contractual obligation arising after the Closing Date, to the extent that such prohibitionor restriction is not entered into in contemplation of such Person becoming a Subsidiary), or which wouldrequire governmental (including regulatory) consent, approval, license or authorization to provide aguarantee of the Obligations unless such consent, approval, license or authorization has been received orobtained;provided that, to the extent necessary, with respect to any Subsidiary, (i) Holdings and theBorrower shall request the consent, approval, license or authorization of any applicable GovernmentalAuthority for such subsidiary to guarantee or provide security for the Obligations within 30 Business Daysafter such Subsidiary would otherwise be required to Guarantee or provide security for the Obligations and(ii) Holdings and the Borrower shall use their commercially reasonable efforts, to the extent permitted byApplicable Law, to obtain such consent, approval, license or authorization of such Governmental Authority;provided that Holdings and the Borrower shall not be required to take any action pursuant to this provisothat would reasonably be expected to result in any unreasonable cost to or impact on the business ofHoldings and its Subsidiaries (in the good faith determination of the Borrower);(f)any captive insurance Subsidiary;(g)any not-for-profit Subsidiary; or(h)any other Domestic Subsidiary with respect to which, (x) in the reasonable judgment ofthe Borrower and the Administrative Agent, the cost, burden or consequences of providing a guarantee isexcessive in view of the benefits to be obtained by the Lenders or (y) providing such guarantee wouldreasonably be expected to result in material adverse tax consequences to the Borrower or one of itsSubsidiaries, as determined in good faith in writing delivered to the Administrative Agent by the Borrower.-22-141683210_5 163765871_7 22-31184-1 C1.1 P44 |
“Excluded Swap Obligation ” means, with respect to any Loan Party, any Swap Obligation if, and to theextent that, all or a portion of the liability of such Loan Party for or the guarantee of such Loan Party of, or the grantby such Loan Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is orbecomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity FuturesTrading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’sfailure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act andthe regulations thereunder at the time the liability for or the guarantee of such Loan Party or the grant of suchsecurity interest becomes effective with respect to such Swap Obligation (such determination being made aftergiving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Loan Party,including under Section 2.12 of the Guaranty Agreement). If a Swap Obligation arises under a master agreementgoverning more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that isattributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified inthe immediately preceding sentence of this definition.“Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or requiredto be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income(however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of suchRecipient being organized under the laws of, or having its principal office or, in the case of any Lender, itsapplicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii)that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed onamounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitmentpursuant to a law in effect on the date on which (i) such Lender acquires the applicable interest in the applicableCommitment or, if such Lender did not fund an applicable Loan pursuant to a prior Commitment, on the date suchLender acquires the applicable interest in such Loan (other than, in each case, pursuant to an assignment request bythe Borrower underSection 2.20 )) or (ii) such Lender changes its Lending Office, except in each case to the extentthat, pursuant toSection 2.16 , amounts with respect to such Taxes were payable either to such Xxxxxx’s assignorimmediately before such Lender acquired the applicable interest in the applicable Loan or Commitment or to suchLender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure tocomply with Section 2.16(g) and (d) any United States federal withholding Taxes imposed under FATCA.“Existing Credit Agreement ” means that certain Third Amended and Restated Credit Agreement, dated asof October 5, 2016, among Holdings, the Borrower, Xxxxx Fargo Bank, National Association, as administrativeagent, issuing bank and swingline lender, and the other parties thereto (as amended, supplemented or otherwisemodified from time to time).“Existing Indenture ” means that certain Indenture, dated as of September 18, 2014, among Holdings, theBorrower, and Xxxxx Fargo Bank, National Association, as trustee (as amended, supplemented or otherwisemodified from time to time).“Existing Letters of Credit ” means those letters of credit existing on the Closing Date and identified onSchedule 1.01(b) ..“Extended Revolving Commitment ” means, as of any date of determination and with respect to eachAccepting Revolving Lender, the commitment of such Accepting Revolving Lender to make Revolving Loans inaccordance with the Revolving Extension Agreement and to acquire participations in Letters of Credit and SwinglineLoans hereunder, as the same may be reduced from time to time pursuant to the provisions of this Agreement.“Extended Revolving Loans ” means the loans made pursuant to an Extended Revolving Commitment.“Extended Revolving Subfacility ” means any tranche of Extended Revolving Loans.“Extended Term Lenders ” shall mean each Lender with an Extended Term Loan.“Extended Term Loans ” means the loans extended pursuant to a Term Loan Modification Agreement.“Extended Term Subfacility ” means any tranche of Extended Term Loans.-23-141683210_5 163765871_7 22-31184-1 C1.1 P45 |
“Fair Market Value ”means the price that would be paid in an arm’s-length transaction between aninformed and willing seller and a willing and able buyer, as determined in good faith by an Authorized Officer of theBorrower.“FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or anyamended or successor version that is substantially comparable and not materially more onerous to comply with), anycurrent or future regulations or official interpretations thereof, any agreements entered into pursuant to Section1471(b)(1) of the Code, as of the date of this Agreement (or any amended or successor version described above),and any intergovernmental agreement, treaty or convention among Governmental Authorities (and any relatedApplicable Law) implementing the foregoing.“FCC ” has the meaning assigned to such term in Section 3.22(a) ..“FDIC ” means the Federal Deposit Insurance Corporation and any successor organization performingsimilar functions.“Federal Funds Effective Rate ” means, for any day, the rate calculated by the NYFRB based on such day’sfederal funds transactions by depositary institutions, as determined in such manner as shall be set forth on theFederal Reserve Bank of New York’s Website from time to time, and published on the next succeeding BusinessDay by the NYFRB as the effective federal funds rate;provided that if the Federal Funds Effective Rate as sodetermined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.“Federal Reserve Bank of New York’s Website ” means the website of the NYFRB athttp://xxx.xxxxxxxxxx.xxx, or any successor source.“Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United Statesof America.“Fee Letter ” means that certain fee letter dated September 13, 2020 among Holdings, JPMorgan ChaseBank, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxx Fargo Securities, LLC, Xxxxx Fargo Bank, N.A., GoldmanSachs Bank USA, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, DeutscheBank Securities Inc., TD Securities (USA) LLC and The Toronto-Dominion Bank, New York Branch.“Fees ” means the Commitment Fee, the LC Fees and the Administrative Agent Fees.“Financial Covenant ” means those covenants and agreements of the Loan Parties set forth in Section 6.11 ..“Financial Officer ” of any corporation, partnership or other entity means the chief financial officer, theprincipal accounting officer, Treasurer or Controller (or person having an analogous title) of such corporation,partnership or other entity.“First Lien Intercreditor Agreement ” means the pari passu intercreditor agreement, dated as of the ClosingDate and substantially in the form ofExhibit J , among the Borrower, Holdings, the Subsidiary Loan Parties, theAdministrative Agent, Xxxxx Fargo Bank, National Association, as trustee under the Senior Secured Notes and theother parties thereto (including, any Other Debt Representative for the holders of other Indebtedness that ispermitted underSection 6.01 to be, and intended to be, secured on apari passu basis with the Liens securing theObligations), as amended, restated, supplemented or otherwise modified from time to time in accordance with therequirements thereof and of this Agreement, and which shall also include any replacement intercreditor agreemententered into in accordance with the terms hereof.“Fiscal Quarter ” means any quarter of a Fiscal Year.“Fiscal Year ” means any period of twelve consecutive calendar months ending on December 31; referencesto a Fiscal Year with a number corresponding to any calendar year refer to the Fiscal Year ending on December 31occurring during such calendar year.-24-141683210_5 163765871_7 22-31184-1 C1.1 P46 |
“Fixed Baskets ” has the meaning assigned thereto in Section 1.10(a) ..“Fixed Charges ” means, with respect to any specified Person for any period, the sum, without duplication,of:(1)the Consolidated Interest Expense of such Person and its Subsidiaries for such period,whether paid or accrued, including, without limitation, original issue discount, non-cash interest payments,the interest component of any deferred payment obligations, the interest component of all paymentsassociated with Capital Lease Obligations, imputed interest with respect to Attributable Sale LeasebackObligations, commissions, discounts and other fees and charges incurred in respect of letter of credit orbankers’ acceptance financings, and net of the effect of all payments made or received pursuant to HedgingObligations, but excluding the amortization or write-off of debt issuance costs; plus(2)the consolidated interest of such Person and its Subsidiaries that was capitalized duringsuch period; plus(3)any interest expense on Indebtedness of another Person that is guaranteed by such Personor one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries (other thana pledge of Equity Interests of an Unrestricted Subsidiary to secure Non-Recourse Debt of suchUnrestricted Subsidiary), whether or not such Guarantee or Lien is called upon; plus(4)the product of (a) all dividends, whether paid or accrued (but, in the case of accrued, onlyin the case of (x) Preferred Stock of any Subsidiary of such Person that is not a Subsidiary Loan Party or (y)Disqualified Stock of such Person or of any of its Subsidiaries) and whether or not in cash, on any series ofDisqualified Stock of such Person or on any series of Preferred Stock of such Person’s Subsidiaries, otherthan dividends on Equity Interests payable solely in Equity Interests (other than Disqualified Stock) of suchPerson or to such Person or to a Subsidiary of such Person, times (b) a fraction, the numerator of which isone and the denominator of which is one minus the then current combined federal, state and local statutorytax rate of such Person, expressed as a decimal;in each case, on a consolidated basis and in accordance with GAAP. For the avoidance of doubt, in no event will anyaccruals or payments in respect of or on account of the Subordinated Notes, the Preferred Stock or the ContingentPayment Rights, in each case relating to the Investment Transactions, constitute “Fixed Charges.”“Flood Insurance Laws ” means, collectively, (i) the National Flood Insurance Act of 1968 as now orhereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafterin effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafterin effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effector any successor statute thereto and (v) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafterin effect or any successor statute thereto.“Floor” means, in the case of the Revolving Loans, a rate of interest equal to 0.0% per annum. “Foreign Lender ” means a Lender that is not a U.S. Person.“Foreign Plan ” means any employee benefit plan, program, policy, arrangement or agreement maintained orcontributed to outside the United States by any Loan Party or any of its Subsidiaries primarily for the benefit ofemployees of any Loan Party or any of its Subsidiaries employed outside the United States.“Foreign Subsidiary ”means a Subsidiary of the Borrower that (a) is not organized or existing under thelaws of the United States of America or any state thereof or the District of Columbia, (b) directly or indirectly, holdsno material assets other than equity interests of one or more entities described in clause (a) of this definition, or (c) isa Subsidiary of an entity described in clauses (a) or (b) of this definition. For the avoidance of doubt, any Subsidiaryincorporated or organized under the laws of a territory of the United States (including the Commonwealth of PuertoRico) shall constitute a “Foreign Subsidiary”.-25-141683210_5 163765871_7 22-31184-1 C1.1 P47 |
“Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank,such Defaulting Lender’s LC Exposure with respect to Letters of Credit issued by such Issuing Bank, other than LCExposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders orCash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, suchDefaulting Lender’s Commitment Percentage of Swingline Loans other than Swingline Loans as to which suchDefaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized inaccordance with the terms hereof.“Fund ” means any Person (other than a natural person or a holding company, investment vehicle or trustfor, or owned and operated for the primary benefit of, a natural person)) that is (or will be) engaged in making,purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of itsbusiness.“Funded Debt ” means all Indebtedness of Holdings and its Subsidiaries for borrowed money that maturesmore than one year from the date of its creation or matures within one year from such date that is renewable orextendable, at the option of such Person, to a date more than one year from such date or arises under a revolvingcredit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one yearfrom such date, including Indebtedness in respect of the Loans.“GAAP ” means, subject toSection 1.03 , generally accepted accounting principles in the United Statesapplied on a consistent basis.“Governmental Authority ” means the government of the United States or any other nation, or of anypolitical subdivision thereof, whether state, local or otherwise, and any agency, authority, instrumentality, regulatorybody, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (including any supra-national bodies such as theEuropean Union or the European Central Bank and including, without limitation, the FCC and the State PUCs).“Guarantee ” of or by any Person (the “guarantor ”) means any obligation, contingent or otherwise, of theguarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of anyother Person (the “primary obligor ”) in any manner, whether directly or indirectly, and including any obligation ofthe guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any securityfor the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring theowner of such Indebtedness or other obligation of the payment thereof (including pursuant to a “synthetic lease”), (c)to maintain working capital, equity capital or any other financial statement condition or liquidity of the primaryobligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party inrespect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation;provided thatthe term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.The amount of the obligation under any Guarantee shall be deemed to be the lower of (a) an amount equal to thestated or determinable amount of the primary obligation in respect of which such Guarantee is made (includingprincipal, interest and fees) and (b) the maximum amount for which such guarantor may be liable pursuant to theterms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount forwhich such guarantor may be liable are not stated or determinable, in which case the amount of the obligation undersuch Guarantee shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determinedby the guarantor in good faith; irrespective, in any such case, of any amount thereof that would, in accordance withGAAP, be required to be reflected on a balance sheet of such Person.“Guaranty Agreement ” means the Guaranty Agreement dated as of October 2, 2020 by and amongHoldings and the Subsidiary Loan Parties in favor of the Administrative Agent, as amended, amended and restated,supplemented, reaffirmed or otherwise modified from time to time.“Hazardous Materials ” means all pollutants, contaminants, wastes, substances, chemicals, materials andconstituents, including without limitation, crude oil, petroleum or petroleum distillates, asbestos orasbestos-containing materials, polychlorinated biphenyls (“PCBs ”) or PCB-containing materials or equipment of anynature which can give rise to Environmental Liability under, or are regulated pursuant to, any Environmental Law.-26-141683210_5 163765871_7 22-31184-1 C1.1 P48 |
“Hedging Agreement ” means any agreement with respect to any Interest Rate Contract, forward rateagreement, commodity swap, forward foreign exchange agreement, currency swap agreement, cross-currency rateswap agreement, currency option agreement or other agreement or arrangement designed to alter the risks of anyPerson arising from fluctuations in interest rates, currency values or commodity prices, all as amended, restated,supplemented or otherwise modified from time to time.“Hedging Obligations ” means all existing or future payment and other obligations owing by any Loan Partyunder any Hedging Agreement (which such Hedging Agreement is permitted hereunder) with any Secured HedgingProvider.“Historical Financial Statements ” means the Audited Financial Statements and the Unaudited FinancialStatements.“Holdings ” has the meaning assigned to such term in the preamble to this Agreement.“Immaterial Subsidiary ” shall mean any Subsidiary that (a) did not, as of the last day of the Fiscal Quarterof Holdings most recently ended for which financial statements have been delivered pursuant toSection 5.01(a) or (b) , have assets with a value in excess of 5.0% of the Total Assets or the total revenues representing in excess of5.0% of total revenues of Holdings and its Subsidiaries on a consolidated basis as of such date, and (b) takentogether with all Immaterial Subsidiaries as of such date, did not have assets with a value in excess of 10% of TotalAssets or revenues representing in excess of 10% of total revenues of Holdings and its Subsidiaries on aconsolidated basis as of such date; provided, that the Borrower may elect in its sole discretion to exclude as anImmaterial Subsidiary any Subsidiary that would otherwise meet the definition thereof.“Impacted Interest Period ” has the meaning assigned to such term in the definition of “LIBO Rate”.“Impermissible Qualification ” means, relative to the opinion or certification of any independent publicaccountant as to any consolidated financial statements of Holdings, any qualification or exception to such opinion orcertification:(a)which is of a “going concern” or similar nature;(b)which relates to the limited scope of examination of matters relevant to such financialstatement; or(c)which relates to the treatment or classification of any item in such financial statement andwhich, as a condition to its removal, would require an adjustment to such item the effect of which would beto cause the Borrower to be in Default under any Financial Covenant.“Increase Effective Date ” has the meaning assigned to such term in Section 2.21(f) ..“Increased Cost Lender ” has the meaning assigned thereto in Section 2.20 ..“Incremental Equivalent Debt ” has the meaning assigned thereto in Section 6.01(a)(iv) ..“Incremental Equivalent First Lien Debt ” has the meaning assigned thereto in Section 6.01(a)(iv) ..“Incremental Equivalent Junior Lien Debt ” has the meaning assigned thereto in Section 6.01(a)(iv) ..“Incremental Equivalent Non-Collateral Debt ” has the meaning assigned thereto in Section 6.01(a)(iv) ..“Incremental Equivalent Unsecured Debt ” has the meaning assigned thereto in Section 6.01(a)(iv) ..“Incremental Facilities ” has the meaning assigned to such term in Section 2.21(a) ..“Incremental Facility Amendment ” has the meaning assigned to such term in Section 2.21(e) ..-27-141683210_5 163765871_7 22-31184-1 C1.1 P49 |
“Incremental Lender ” means any Person with a commitment with respect to an Incremental Facility or anoutstanding Incremental Term Loan in its capacity as such; provided that each Incremental Lender shall be subject tothe approval of (i) the Administrative Agent, such approval not to be unreasonably withheld or delayed, to the extentthat each such Incremental Lender is not then an existing Lender, an Affiliate of a then existing Lender or anApproved Fund and (ii) with respect to any such Person providing Incremental Revolving Commitments, eachIssuing Bank, such approval not to be unreasonably withheld or delayed, and the Swingline Lender, such approvalnot to be unreasonably withheld or delayed.“Incremental Revolving Commitments ” has the meaning assigned to such term in Section 2.21(a) ..“Incremental Revolving Loans ” has the meaning assigned to such term in Section 2.21(a) ..“Incremental Term Commitments ” has the meaning assigned to such term in Section 2.21(a) ..“Incremental Term Lender ” means a Lender with an Incremental Term Commitment or an outstandingIncremental Term Loan, in its capacity as such.“Incremental Term Loans ” has the meaning assigned to such term in Section 2.21(a) ..“Incurrence-Based Baskets ” has the meaning assigned thereto in Section 1.10(a) ..“Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowedmoney, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) allobligations of such Person upon which interest charges are customarily paid (excluding obligations to pay salary orbenefits under deferred compensation or other benefit programs), (d) all obligations of such Person underconditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations ofsuch Person in respect of the deferred purchase price of property or services, except any such balance thatconstitutes an accrued expense or trade payable (provided that Indebtedness shall not include any Earn-OutObligation or obligation in respect of purchase price adjustment, except to the extent that the contingentconsideration relating thereto is not paid within 15 Business Days after the contingency relating thereto is resolved),(f) all Indebtedness (excluding prepaid interest thereon) of others secured by (or for which the holder of suchIndebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned oracquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees bysuch Person of Indebtedness or other financial obligations of others, (h) all Capital Lease Obligations of suchPerson, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of creditand letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptancesand (k) all Net Hedging Obligations of such Person. The Indebtedness of any Person shall include the Indebtednessof any other entity (including any partnership in which such Person is a general partner) to the extent such Person isdirectly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, exceptto the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance ofdoubt, the Contingent Payment Rights shall not constitute Indebtedness. For purposes of calculating any financialratio under this Agreement, including the Consolidated First Lien Leverage Ratio, the Consolidated Senior SecuredRatio and the Total Net Leverage Ratio, all obligations owed by any Loan Party or any of their respectiveSubsidiaries under the Subordinated Notes shall be excluded from “Indebtedness.”“Indemnified Taxes ” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to anypayment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extentnot otherwise described in clause (a), Other Taxes.“Indemnitee ” has the meaning assigned to such term in Section 9.03(b) ..“Information ” has the meaning assigned to such term in Section 9.11 ..“Initial Term Commitment ” means, as to each Lender, as of any date of determination, the commitment ofsuch Lender to make Initial Term Loans hereunder. The initial amount of each Lender’s Initial Term Commitment is-28-141683210_5 163765871_7 22-31184-1 C1.1 P50 |
“Investment ” has the meaning assigned to such term in Section 6.04 ..“Investment Agreement ” means that certain Investment Agreement, to be dated on or about September 13,2020 by and among the Investor, and Holdings (as amended, restated, supplemented or otherwise modified fromtime to time).“Investment Transactions ” means the investment by one or more of the Investing Parties in Holdingspursuant to the Investment Agreement, and, in connection therewith, the entry into and performance of relatedtransactions, agreements, instruments and arrangements, including, but not limited to:(a)entry into the Subordinated Notes and (i) the incurrence of Indebtedness thereunder, (ii)the sale of the Subordinated Notes to one or more of the Investing Parties and (iii) the conversion orexchange of the Subordinated Notes for Series A perpetual preferred stock of Holdings in accordance withthe terms thereof;(b)the acquisition by one or more of the Investing Parties of shares of Holdings’ commonstock, Series A perpetual preferred stock and Contingent Payment Rights convertible into shares ofHolding’s common stock in accordance with the terms set forth in the Contingent Payment Rightsagreement described below;(c)the contingent payment rights agreement to be entered into between one or more of theInvesting Parties and Holdings and any payment of cash or conversion of the contingent payment right intoshares of Holdings’ common stock contemplated therein;(d)the governance agreement entered into between the one or more of the Investing Partiesand Holdings;(e)the registration rights agreement to be entered into between one or more of the InvestingParties and Holdings and the registration and sale of any securities pursuant to the terms thereof;(f)the certificate of designations relating to the Series A preferred stock, dividends issuedpursuant to such Series A preferred stock and any other payments made in connection therewith;(g)any documents, filings, or other actions related to certain regulatory and stockholderapprovals necessary to consummate the transactions described in this definition; andin each case, the performance of the transactions and obligations contemplated by any of the foregoing, including,but not limited to, the incurrence of Indebtedness, the making of Restricted Payments (other than RestrictedPayments consisting of voluntary prepayments or redemptions of the Subordinated Notes and the Series A preferredstock) and Investments, and the sale or other disposition of any assets, Equity Interests, or other property.“Investor ” means Searchlight III CVL, L.P., a Delaware limited partnership.“IRS ” means the United States Internal Revenue Service.“ISDA CDS Definitions ” has the meaning assigned to such term in Section 9.02 ..“Issuing Bank ” means (a) each of Xxxxx Fargo, JPMorgan Chase Bank, N.A., Xxxxxx Xxxxxxx SeniorFunding, Inc., Xxxxxxx Sachs Bank USA, Deutsche Bank AG New York Branch, The Toronto-Dominion Bank,New York Branch, CoBank, ACB and Mizuho Bank, Ltd., in their respective capacities as an issuer of Letters ofCredit hereunder, together with its permitted successors and assigns and (b) each Revolving Lender that shall havebecome an Issuing Bank hereunder as provided inSection 2.06(l) ;provided that (x) no Issuing Bank shall berequired to issue Letters of Credit in an amount in excess of the amount set forth across from its name under theheading “Letter of Credit Commitment” inSchedule 2.01 (or in the documents pursuant to which such Issuing Bankbecame an Issuing Bank) (with respect to each Issuing Bank, its “Letter of Credit Limit ”) and (y) each of Xxxxxx-30-141683210_5 163765871_7 22-31184-1 C1.1 P52 |
Xxxxxxx Senior Funding, Inc., Deutsche Bank AG New York Branch, Xxxxx Fargo and Xxxxxxx Sachs Bank USAand their respective Affiliates or designees shall only be required to issue standby Letters of Credit. Each IssuingBank shall have the ability (in its sole discretion) to cause Letters of Credit to be issued by its Affiliates and suchLetters of Credit shall be treated as issued by such Issuing Bank for all purposes under this Agreement and the otherLoan Documents.“Junior Lien Intercreditor Agreement ” means one or more customary junior lien intercreditor agreements inform and substance reasonably satisfactory to the Administrative Agent, among the Borrower, Holdings, theSubsidiary Loan Parties, the Administrative Agent and one or more Other Debt Representatives for the holders ofIndebtedness that is permitted underSection 6.01 to be, and intended to be, secured on a junior lien basis with theLiens securing the Obligations, as amended, restated, supplemented or otherwise modified from time to time inaccordance with the requirements thereof and of this Agreement, and which shall also include any replacementintercreditor agreement entered into in accordance with the terms hereof.“Latest Maturity Date ” shall mean, at any date of determination, the latest maturity date applicable to anyTerm Loan hereunder at such time, including the latest maturity date of any Term Loan, any Incremental Term Loan,any Extended Term Loan or any Refinancing Term Loan, in each case as extended in accordance with thisAgreement from time to time.“LC Disbursement ” means a payment made by the Issuing Bank pursuant to a Letter of Credit.“LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Lettersof Credit at such timeplus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed byor on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be itsCommitment Percentage of the total LC Exposure at such time.“LC Fees ” has the meaning assigned to such term in Section 2.10(b) ..“LCT Election ” has the meaning assigned to such term in Section 1.09(a) ..“LCT Test Date ” has the meaning assigned to such term in Section 1.09(a) ..“Lenders ” has the meaning assigned to such term in the preamble hereto.“Letter of Credit ” means any letter of credit issued pursuant to this Agreement and any Existing Letter ofCredit.“Letter of Credit Limit ” has the meaning assigned to such term in the definition of “Issuing Bank.”“LFA ” has the meaning assigned to such term in Section 3.22(a) ..“LIBO Rate ” means, with respect to any Eurodollar Borrowing for any interest period, the LIBO ScreenRate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such interestperiod;provided that if the LIBO Screen Rate shall not be available at such time for such interest period (an“Impacted Interest Period ”) then the LIBO Rate shall be the Interpolated Rate.“LIBO Screen Rate ” means, for any day and time, with respect to any Borrowing, the London interbankoffered rate as administered by ICE Benchmark Administration (or any other Person that takes over theadministration of such rate for U.S. Dollars for a period equal in length to such interest period as displayed on pagesLIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on aReuters page or screen, on any successor or substitute page on such screen that displays such rate, or on theappropriate page of such other information service that publishes such rate from time to time as selected by theAdministrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would beless than zero, such rate shall be deemed to zero for the purposes of calculating such rate.-31-141683210_5 163765871_7 22-31184-1 C1.1 P53 |
“Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, deed to secure debt, lien, pledge,encumbrance, charge, assignment, hypothecation or security interest in or on such asset or any filing of any financingstatement under the UCC as in effect in the applicable state or jurisdiction or any other similar notice or lien underany similar notice or recording statute of any Governmental Authority, in each of the foregoing cases whethervoluntary or imposed by law, (b) the interest of a vendor or a lessor under any conditional sale agreement, capitallease or title retention agreement relating to such asset, (c) in the case of any investment property or deposit account,any contract or other agreement, express or implied, under which any Person has the right to control such investmentproperty or deposit account and (d) any other agreement intended to create any of the foregoing.“Limited Condition Transaction ” means (i a ) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Equity Interests or otherwise),whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (ii b ) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock orPreferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction anddischarge or repayment and (iii c ) any Restricted Payment requiring irrevocable notice in advance thereof. “Loan Documents ” means this Agreement, each Revolving Extension Agreement, each Term LoanModification Agreement, each Refinancing Amendment, the Guaranty Agreement, the First Lien IntercreditorAgreement, the Junior Lien Intercreditor Agreement, if any, the Security Documents, if requested by a Lenderpursuant to Section 2.07(e) , each Note and, solely for purposes of Section 7.01(a) , the Fee Letter.“Loan Parties ” means Holdings, the Borrower and the Subsidiary Loan Parties.“Loans ” means the Revolving Loans, the Swingline Loans, the Initial Term Loan, the Term B-1 Loans, theIncremental Term Loans, Incremental Revolving Loans, Extended Revolving Loans, Extended Term Loans,Refinancing Revolving Loans or Refinancing Term Loans, as the context requires. “Material Adverse Effect ” means a materially adverse effect on (a) the business, financial condition orresults of operations of Holdings and its Subsidiaries, taken as a whole, after giving effect to the InvestmentTransactions, (b) the ability of the Borrower or the other Loan Parties to perform their payment obligations under theLoan Documents when due, or (c) the validity or enforceability of any of the Loan Documents or the rights andremedies of the Administrative Agent and the Lenders under any of the Loan Documents.“Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), of Holdings orany of its Subsidiaries, individually or in an aggregate principal amount exceeding $50.0 million.“Material Real Property ” means real property located in the United States owned in fee by the Borrower orthe other Loan Parties with a Fair Market Value in excess of $3.0 million (measured as of the date hereof, if ownedas of the date hereof, or at the time of the closing of the acquisition thereof, if acquired after the date hereof, in eachcase as reasonably determined in good faith by the Borrower or such Guarantor not to exceed the actual purchaseprice paid for such real property if acquired after the date hereof); provided that in no event shall real propertyobtained by the Borrower or a Guarantor through foreclosure or otherwise through the exercise of remedies inrespect of obligations owed by a third party to the Borrower, Holdings or any of their respective Subsidiariesconstitute Material Real Property.“Material Subsidiaries ” means (i a ) the Borrower and (ii b ) any Subsidiary other than an Immaterial Subsidiary.“Maturity Date ” means (a) with respect to the Term B-1 Loans, the Term Loan Maturity Date, (b) withrespect to the Revolving Commitments, the Revolving Maturity Date, (c) with respect to any Class of IncrementalTerm Loans or Incremental Revolving Commitments, the final maturity as specified in the applicable IncrementalFacility Amendment, (e d ) with respect to any Class of Extended Term Loans, the final maturity date as specified in the applicable Term Loan Modification Agreement, (f e ) with respect to any Class of Extended Revolving Commitments, the final maturity date as specified in the applicable Revolving Extension Agreement, and (g f ) with respect to any Class of Refinancing Term Loans or Refinancing Revolving Commitments, the final maturity date asspecified in the applicable Refinancing Amendment.-32-141683210_5 163765871_7 22-31184-1 C1.1 P54 |
“MFN Protection ” has the meaning assigned to such term in Section 2.21(b) ..“Minimum Collateral Amount ” means, at any time, (a) with respect to Cash Collateral consisting of cash ordeposit account balances, an amount equal to 105% of the sum of (i) the Fronting Exposure of the Issuing Bankswith respect to Letters of Credit issued and outstanding at such time and (ii) the Fronting Exposure of the SwinglineLender with respect to all Swingline Loans outstanding at such time and (b) otherwise, an amount determined by theAdministrative Agent and each of the applicable Issuing Banks that is entitled to Cash Collateral hereunder at suchtime in their sole discretion.“Moody’s ” means Xxxxx’x Investors Service, Inc. and any successor to its rating agency business.“Mortgage ” means a mortgage, deed of trust, assignment of leases and rents or other security documentgranting a Lien on any Mortgaged Property, in each case, as amended, amended and restated, supplemented orotherwise modified from time to time. Each Mortgage shall be substantially in the form ofExhibit F or otherwisesatisfactory in form and substance to the Administrative Agent.“Mortgaged Property ” means each parcel of real property and the improvements thereto owned by a LoanParty which is or is intended to be subject to a Mortgage.“Multiemployer Plan ” means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (i)to which any Loan Party or ERISA Affiliate is then making or accruing an obligation to make contributions, (ii) towhich any Loan Party or ERISA Affiliate has within the preceding six plan years made contributions, including anyPerson which ceased to be an ERISA Affiliate during such six year period, or (iii) with respect to which any LoanParty or any ERISA Affiliate could incur liability.“Net Hedging Obligations ” means, with respect to any Hedging Agreement, as of any date, the TerminationValue of such Hedging Agreement on such date.“Net Proceeds ” means, with respect to any Debt Incurrence, Asset Sale, Destruction or Taking, (a) the cashproceeds actually received by Holdings or any of its Subsidiaries in respect of such event, including (i) any cashreceived in respect of any non-cash proceeds, but only as and when received, (ii) in the case of a Destruction,insurance proceeds in excess of $10.0 million, and (iii) in the case of a Taking, condemnation awards and similarpayments in excess of $10.0 million, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid bythe Loan Parties and their Subsidiaries to third parties, (ii) the amount of all taxes paid (or reasonably estimated tobe payable) by the Loan Parties and their Subsidiaries, and (iii) in the case of an Asset Sale, the amount of allpayments required to be made by the Loan Parties and their Subsidiaries as a result of such event to repayIndebtedness (other than the Loans and otherIndebtedness secured by a Lien on theCollateral that rankspari passuwith the Liens on the Collateral that secure theObligations prepaid pursuant toSection 2.05(c)(ii)(ii) )secured by aLien on such asset and the amount of any reserves established by the Loan Parties and their Subsidiaries to reservefor adjustment in respect of the sale price of any such assets in accordance with GAAP or to fund contingentliabilities, including, without limitation, pension and other post-benefit employment liabilities, liabilities related toenvironmental matters and liabilities under indemnification obligations associated with such event (as reasonablydetermined by the Borrower);provided that any amount by which such reserves are reduced for reasons other thanpayment of any such contingent liabilities shall be considered “Net Proceeds” upon such reduction.“Net Short Lender ” has the meaning assigned to such term in Section 9.02 ..“Non-Consenting Lender ” has the meaning assigned to such term in Section 2.20 ..“Non-Extension Notice Date ” has the meaning assigned to such term in Section 2.06(b) ..“Non-Recourse Debt ” means Indebtedness as to which neither the Borrower nor any of its Subsidiaries(i)(a) provides credit support of any kind (including any undertaking, agreement or instrument that would constituteIndebtedness) other than a pledge of the Equity Interests of the Unrestricted Subsidiary that is the obligor thereunderor (b) is directly or indirectly liable as a guarantor or otherwise, or (ii) constitutes the lender.-33-141683210_5 163765871_7 22-31184-1 C1.1 P55 |
“Non-U.S. Jurisdiction ” means any jurisdiction other than the United States, any state thereof or the Districtof Columbia.“Non-U.S. Subsidiary ” means any Subsidiary of Holdings that is organized under the laws of a Non-U.S.Jurisdiction.“Note ” means a note substantially in the form of Xxxxxxx X-0 , X-0 or D-3 ..“Notice of Account Designation ” has the meaning assigned thereto in Section 2.02(c) ..“Notice of Conversion/Continuation ” has the meaning assigned thereto in Section 2.03(a) ..“Notice of Prepayment ” has the meaning assigned thereto in Section 2.05(a) ..“NYFRB ” means the Federal Reserve Bank of New York.“NYFRB Rate ” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on xxxxxxx and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for theimmediately preceding Business Day);provided that if none of such rates are published for any day that is aBusiness Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on xxxxxxx received by the Administrative Agent from a federal funds broker of recognized standing selected by it;provided, further , that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of calculating such rate.“Obligations ” means (a) the unpaid principal of and interest on (including interest accruing after thematurity of the Loans made to the Borrower and interest accruing after the filing of any petition in bankruptcy, or thecommencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not aclaim for post-filing or post-petition interest is allowed in such proceeding) the Loans made to or LC Disbursementsmade pursuant to Letters of Credit issued for the account of the Borrower and all other obligations and liabilities ofthe Borrower and the other Loan Parties to the Administrative Agent, the Issuing Bank or to any Lender, whetherdirect or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which mayarise under, out of, or in connection with, this Agreement or any other document made, delivered or given inconnection herewith, whether on account of principal, interest, fees, indemnities, costs or expenses (including,without limitation, all reasonable fees, charges and disbursements of counsel), or otherwise, (b) all HedgingObligations (other than an Excluded Swap Obligation) and (c) all Cash Management Obligations.“OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.“Organic Document ” means (a) relative to each Person that is a corporation, its charter, its by-laws and allshareholder agreements, voting trusts and similar arrangements applicable to any of its authorized shares of capitalstock, (b) relative to each Person that is a partnership, its partnership agreement and any other similar arrangementsapplicable to any partnership or other Equity Interests in the Person, (c) relative to each Person that is a limitedliability company, its limited liability company agreement and any other similar arrangements applicable to suchlimited liability company or other Equity Interests in such Person, and (d) relative to any Person that is any othertype of legal entity, such documents as shall be comparable to the foregoing.“Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present orformer connection between such Recipient and the jurisdiction imposing such Tax (other than connections arisingfrom such Recipient having executed, delivered, become a party to, performed its obligations under, receivedpayments under, received or perfected a security interest under, engaged in any other transaction pursuant to orenforced any Loan Document, or sold or assigned any interest in any Loan or Loan Document).“Other Debt Representative ” means, with respect to any series of Indebtedness permitted to be incurredhereunder and permitted hereunder to be secured by Xxxxx on Collateral that rank on apari passu basis with or ajunior lien basis to the Lien securing the Obligations, the trustee, administrative agent, collateral agent, security-34-141683210_5 163765871_7 22-31184-1 C1.1 P56 |
agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred orotherwise obtained, as the case may be, and each of their successors in such capacities.“Other Taxes ” means all present or future stamp, court, documentary, intangible, recording, filing or similarTaxes that arise from any payment made under, from the execution, delivery, performance, enforcement orregistration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any LoanDocument, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (otherthan an assignment made pursuant to Section 2.20 ).“Overnight Bank Funding Rate ” means, for any day, the rate comprised of both overnight federal funds andovernight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rateshall be determined by the NYFRB as set forth on the Federal Reserve Bank of New York’s Website from time totime, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.“Participant ” has the meaning assigned to such term in Section 9.10(d) ..“Participant Register ” has the meaning assigned to such term in Section 9.10(d) ..“PATRIOT Act ” has the meaning assigned to such term in Section 9.19 ..“PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.“Pension Plan ” means a “pension plan,” as such term is defined in Section 3(2) of ERISA, which is subjectto Title IV of ERISA (other than a Multiemployer Plan) and to which any Loan Party or any ERISA Affiliate mayhave liability, including any liability by reason of having been a substantial employer within the meaning of Section4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributingsponsor under Section 4069 of ERISA.“Permitted Acquisition ” means any acquisition by the Borrower or a Subsidiary Loan Party of a Person,business or division relating to a business (or in the case of the acquisition of a Person, substantially all of suchPerson’s activities constitute a business permitted to be conducted by the Borrower and its Subsidiaries inaccordance withSection 6.03 ) permitted to be conducted by the Borrower and its Subsidiaries in accordance withSection 6.03 ; provided that the following conditions are met: (a) (I) immediately prior to, and after giving effect to,such acquisition (and any indebtedness incurred in connection therewith) on a pro forma basis as if such acquisitionhad been consummated on the first day of the immediately preceding Test Period, no Default shall have occurredand be continuing and (II) the Borrower shall have demonstrated compliance with the Financial Covenant (whetheror not then in effect) immediately after giving effect to such acquisition (and any Indebtedness incurred inconnection therewith), (b) at all times when the Total Net Leverage Ratio calculated on a pro forma basis (and aftergiving effect to any Indebtedness incurred in connection with such acquisition and the use of proceeds thereof)equals or exceeds 4.50 to 1.0, the total cash consideration (including any assumed Indebtedness) in respect of allPermitted Acquisitions shall not exceed $250.0 million in the aggregate (the “Acquisition Limit ”) following theClosing Date (it being understood that, (1) to the extent that Available Proceeds are available, the Borrower mayalso elect to expend such Available Proceeds pursuant toSection 6.04(xi) and (2) to the extent that the CumulativeCredit is available, the Borrower may also elect to expend the Cumulative Credit pursuant toSection 6.04(xiv) );provided,however, that the Acquisition Limit shall not apply to any acquisition or series of acquisitions (A) whichcauses the Total Net Leverage Ratio calculated on a pro forma basis (and after giving effect to any Indebtednessincurred in connection with such acquisition and the use of proceeds thereof) to be lower than the Total NetLeverage Ratio calculated immediately prior to giving effect to such acquisition (and such Indebtedness) or (B)which is consummated at any time when the Total Net Leverage Ratio calculated on a pro forma basis (and aftergiving effect to any Indebtedness incurred in connection with such acquisition and the use of proceeds thereof) isless than 4.50 to 1.0; (c) any Person acquired in such acquisition becomes a Subsidiary Loan Party and grants asecurity interest in its assets to the extent required bySection 5.11 or if such acquisition consists of Property otherthan Equity Interests of a Person that becomes a Subsidiary, the Borrower or the Subsidiary Loan Parties acquiringsuch Property comply withSection 5.11 ; and (d) such acquisition was not commenced or at any time conducted as a“hostile” transaction.-35-141683210_5 163765871_7 22-31184-1 C1.1 P57 |
“Permitted Amendments ” means (a) with respect to a Class or Subfacility of Revolving Loans or RevolvingCommitments (i) an extension of the final maturity date of the Revolving Loans and/or Revolving Commitments ofthe Accepting Revolving Lenders, (ii) an increase in the Applicable Rate with respect to the applicable RevolvingLoans and/or Revolving Commitments of the Accepting Revolving Lenders and the payment of increasedcommitment fees, LC Fees and/or other additional fees to the Accepting Revolving Lenders, (iii) the requirementthat all Letters of Credit or Swingline Loans be drawn only under an Extended Revolving Subfacility, and (iv) othertechnical requirements and modifications regarding borrowings, prepayments, conversion or cancellation of existingRevolving Loans or Swingline Loans or Letters of Credit and other similar matters and (b) with respect to a Class orSubfacility of Term Loans, (i) an extension of the final maturity date of the applicable Term Loans and (ii) a changein the Applicable Rate and other pricing terms (including interest rate “floors”) with respect to the Term Loans ofthe Accepting Term Lenders.“Permitted Asset Swap ” means a transfer of assets consisting primarily of local exchange carrier accesslines and related assets by a Loan Party in which the consideration received therefrom consists of assets consistingprimarily of local exchange carrier access lines and related assets (other than cash) that will be used in its business;provided that (a) the fair market value (as determined in good faith by the board of directors of such Loan Party) ofthe assets so transferred shall not exceed the fair market value (determined as provided in the precedingparenthetical) of the assets so received and (b) the fair market value (as determined in good faith by the board ofdirectors of such Loan Party) of the assets transferred pursuant to all such transactions following the Closing Dateshall not exceed (determined solely as of the date of any transfer) 15% of consolidated tangible assets (as shown onthe consolidated balance sheet of Holdings most recently delivered to the Lenders and the Administrative Agentpursuant to Section 5.01 ).“Permitted First Lien Ratio Debt ” has the meaning assigned to such term in the definition of PermittedRatio Debt.”“Permitted Holders ” means the (i) Sponsors, (ii) any of their Controlled Investment Affiliates, (iii) anyPerson that has no material assets other than the Equity Interests of Holdings and, directly or indirectly, holds oracquires 100.0% of the total voting power of the Voting Stock of Holdings, and of which no other Person or group(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), otherthan any of the other Permitted Holders specified in the foregoing clauses (i) and (ii), holds more than 50.0% of thetotal voting power of the Voting Stock thereof and (iv) any group (within the meaning of Section 13(d)(3) or Section14(d)(2) of the Exchange Act, or any successor provision) the members of which include any of the PermittedHolders specified in clauses (i) and (ii) above and that, directly or indirectly, hold or acquire beneficial ownership ofthe Voting Stock of Holdings (a “Permitted Holder Group ”), so long as (1) each member of the Permitted HolderGroup has voting rights proportional to the percentage of ownership interests held or acquired by such member and(2) no Person or other “group” (other than Permitted Holders specified in clauses (i) and (ii) above) beneficiallyowns more than 50.0% on a fully diluted basis of the Voting Stock held by the Permitted Holder Group.“Permitted Holder Group ” has the meaning assigned to such term in the definition of “Permitted Holders.”“Permitted Junior Lien Ratio Debt ” has the meaning assigned to such term in the definition of PermittedRatio Debt.”“Permitted Liens ” has the meaning assigned to such term in Section 6.02 ..“Permitted Loan Purchase ” has the meaning assigned to such term in Section 9.10 ..“Permitted Loan Purchase Assignment and Assumption ” means an assignment and assumption entered intoby a Lender as an assignor and Holdings, the Borrower or any of the Subsidiaries as an assignee, as accepted by theAdministrative Agent (if required bySection 9.10 ) in the form of Exhibit B-2 or such other form as shall beapproved by the Administrative Agent and the Borrower (such approval not to be unreasonably withheld ordelayed).“Permitted Non-Collateral Ratio Debt ” has the meaning assigned to such term in the definition of“Permitted First Lien Ratio Debt.”-36-141683210_5 163765871_7 22-31184-1 C1.1 P58 |
“Permitted Ratio Debt ” means Indebtedness of Holdings or any Subsidiary incurred in the form or notes orloans (I) secured by the Collateral on apari passu basis with the Obligations (“Permitted First Lien Ratio Debt ”),(II) secured by the Collateral on a junior lien basis to the Obligations (“Permitted Junior Lien Ratio Debt ”), (III)secured solely by assets that are not Collateral (“Permitted Non-Collateral Ratio Debt ”) or (IV) that is unsecured(“Permitted Unsecured Ratio Debt ”), so long as on a pro forma basis: (1) there exists no Event of Default or Eventof Termination; (2) after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, butwithout netting the proceeds thereof, (x) in the case of Permitted First Lien Ratio Debt, Permitted Junior Lien RatioDebt and Permitted Non-Collateral Ratio Debt, the Consolidated Senior Secured Leverage Ratio calculated on a proforma basis is no greater than 3.70 to 1.00 calculated on a pro forma basis as of the most recent date for whichfinancial statements have been delivered pursuant toSection 5.01 or (y) in the case of Permitted Unsecured RatioDebt, the Total Net Leverage Ratio calculated on a pro forma basis is no greater than 4.50 to 1.00 calculated on apro forma basis as of the most recent date for which financial statements have been delivered pursuant toSection 5.01 ; (3) such Indebtedness shall (x) in the case of Permitted First Lien Ratio Debt, have a maturity date that is afterthe Latest Maturity Date at the time such Indebtedness is incurred or (y) in the case of Permitted Junior Lien RatioDebt, Permitted Non-Collateral Ratio Debt or Permitted Unsecured Ratio Debt, have a maturity date that is at leastninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred; provided that theforegoing requirements of this clause (3) shall not apply to the extent such Indebtedness constitutes a customarybridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted orexchanged satisfies the requirements of this clause (3) and such conversion or exchange is subject only to conditionscustomary for similar conversions or exchange; (4) such Indebtedness shall not, have a Weighted Average Life toMaturity shorter than the longest remaining Weighted Average Life to Maturity of any then existing tranche of TermLoans;provided that the foregoing requirements of this clause (4) shall not apply to the extent such Indebtednessconstitutes a customary bridge facility, so long as the long-term Indebtedness into which such customary bridgefacility is to be converted or exchanged satisfies the requirements of this clause (4) and such conversion or exchangeis subject only to conditions customary for similar conversions or exchange; (5) in the case of Permitted Junior LienRatio Debt, the Other Debt Representative for such Indebtedness shall be subject to a Junior Lien IntercreditorAgreement and, in the case of Permitted First Lien Ratio Debt, the Other Debt Representative for such Indebtednessshall be subject to a First Lien Intercreditor Agreement; and (6) Permitted Ratio Debt may only be incurred bySubsidiaries that are not Loan Parties so long as the aggregate amount of Permitted Ratio Debt incurred bySubsidiaries that are not Loan Parties pursuant toSection 6.01(a)(xx) , together with any Indebtedness incurred bySubsidiaries that are not Loan Parties pursuant toSections 6.01(a)(iii) ,6.01(a)(iv) and6.01(a)(xxi) , does not exceedat any time outstanding the greater of (I) $250.0 million and (II) 7.5% of Total Assets (determined at the time suchIndebtedness is assumed or incurred); and (y) any Permitted Refinancing thereof.“Permitted Refinancing ” means, with respect to any Indebtedness (including any refinancing ofIndebtedness incurred in a prior Permitted Refinancing), any other Indebtedness incurred in exchange for, or the netproceeds of which are used to extend, refinance, renew, replace, defease or refund, such Indebtedness;provided ,however , that (a) no Default shall have occurred and be continuing or would arise therefrom, (b) any suchrefinancing Indebtedness shall (i) not have a stated maturity or Weighted Average Life to Maturity that is shorterthan the Indebtedness being refinanced unless such maturity is at least one year after the Term Loan Maturity Date(provided that this clause (i) shall not apply in respect of refinancing Indebtedness consisting of Sale and LeasebackTransactions), (ii) be at least as subordinate in right of payment to the Obligations as the Indebtedness beingrefinanced (and unsecured if the refinanced Indebtedness is unsecured), and (iii) be in an initial principal amountthat does not exceed the principal amount so refinanced, plus all accrued and unpaid interest thereon, plus anyreasonable premium and other payments required to be paid in connection with such refinancing (as determined bythe Borrower), plus in either case, the amount of reasonable expenses of the Loan Parties or any of their Subsidiariesincurred in connection with such refinancing, and (c) the sole obligors and/or guarantors on such refinancingIndebtedness shall be the obligors and/or guarantors on such Indebtedness being refinanced or shall be a Loan Party.“Permitted Unsecured Ratio Debt ” has the meaning assigned to such term in the definition of “PermittedRatio Debt.”“Person ” means any natural person, corporation, trust, joint venture, association, company, partnership,limited liability company or government, or any agency or political subdivision thereof.“Plan ” means any Pension Plan or Welfare Plan.-37-141683210_5 163765871_7 22-31184-1 C1.1 P59 |
“Platform ” means IntraLinks, Debtdomain, SyndTrak or another similar secure electronic system.“Pledge Agreement ” means the Pledge Agreement dated as of October 2, 2020 by and among Holdings, theBorrower and certain of the Subsidiaries of the Borrower in favor of the Administrative Agent, as amended,amended and restated, supplemented, reaffirmed or otherwise modified from time to time.“Preferred Stock ” means, with respect to any Person, any and all preferred or preference Equity Interests(however designated) of such Person whether or not outstanding or issued on the Closing Date.“Prime Rate ” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in theU.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by theFederal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bankprime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by theAdministrative Agent) or any similar release by the Federal Reserve Board (as determined by the AdministrativeAgent). Each change in the Prime Rate shall be effective from and including the date such change is publiclyannounced or quoted as being effective.“Projected Financial Statements ” has the meaning assigned to such term in Section 3.15(b) ..“Property ” means any right, title or interest in or to property or assets of any kind whatsoever, whether real,personal or mixed and whether tangible or intangible and including any ownership interests of any Person.“PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any suchexemption may be amended from time to time.“Public Lender ” has the meaning assigned to such term in Section 5.01 ..“QFC ” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted inaccordance with, 12 U.S.C. § 5390(c)(8)(D).“QFC Credit Support ” has the meaning assigned to such term in Section 9.24 ..“Qualified Cash and Cash Equivalents ” means, as of any date of determination, the unrestricted cash andCash Equivalents held by Holdings and its Subsidiaries as reflected on a consolidated balance sheet of Holdings asof such date excluding (i) the cash and Cash Equivalents of any Subsidiary that is not a Loan Party to the extent suchSubsidiary would be prohibited on such date from distributing such cash to a Loan Party and (ii) the proceeds of anyIncremental Facility or any other Indebtedness incurred substantially concurrently with the applicable determinationof the Total Net Leverage Ratio, the Consolidated First Lien Leverage Ratio or the Consolidated Senior SecuredLeverage Ratio, as applicable.“Real Property ” means all right, title and interest of Holdings or any of its respective Domestic Subsidiariesin and to a parcel of real property owned, leased or operated (including, without limitation, any leasehold estate) byany Loan Party or any of its respective Domestic Subsidiaries together with, in each case, all improvements andappurtenant fixtures, equipment, personal property, easements and other property and rights incidental to theownership, lease or operation thereof.“Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.“Refinancing Amendment ” shall mean an amendment to this Agreement executed by each of (a) theBorrower, (b) the Administrative Agent and (c) each Additional Refinancing Lender thereunder.“Refinancing Revolving Commitments ” shall mean one or more Classes of revolving credit commitmentshereunder that result from a Refinancing Amendment.“Refinancing Revolving Loans ” shall mean one or more revolving loans hereunder that result from aRefinancing Amendment.-38-141683210_5 163765871_7 22-31184-1 C1.1 P60 |
“Refinancing Term Commitments ” shall mean one or more term loan commitments hereunder that fundRefinancing Term Loans of the same Class pursuant to a Refinancing Amendment.“Refinancing Term Lender ” shall mean each Lender with a Refinancing Term Commitment.“Refinancing Term Loans ” shall mean one or more term loans hereunder that result from a RefinancingAmendment.“Register ” has the meaning assigned to such term in Section 9.10(c) ..“Regulated Bank ” means (x) a banking organization with a consolidated combined capital and surplus of atleast $5.0 billion that is (i) a U.S. depository institution the deposits of which are insured by the Federal DepositInsurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii)a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under thesupervision of the Board of Governors of the Federal ReserveSystem Board under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. ornon-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatoryauthority in any jurisdiction or (y) any Affiliate of a Person set forth in clause (x) to the extent that (1) all of theEquity Interests of such Affiliate is directly or indirectly owned by either (I) such Person set forth in clause (x) or(II) a parent entity that also owns, directly or indirectly, all of the Equity Interests of such Person set forth in clause(x) and (2) such Affiliate is a securities broker or dealer registered with the SEC under Section 15 of the ExchangeAct.“Regulation T ” means Regulation T of the Federal Reserve Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.“Regulation U ” means Regulation U of the Federal Reserve Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.“Regulation X ” means Regulation X of the Federal Reserve Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.“Reinvestment Period ” has the meaning assigned to such term in Section 2.05(c)(ii) ..“Rejection Notice ” has the meaning assigned to such term in Section 2.05(d) ..“Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respectivedirectors, officers, trustees, employees, agents, administrators, managers, representatives and advisors of suchPerson and such Person’s Affiliates.“Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Materialin, into, onto or through the Environment.“Relevant Governmental Body ” means the Federal Reserve Board and/or the NYFRB, or a committeeofficially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successorthereto.“Remedial Action ” means (a) “remedial action” as such term is defined in CERCLA, 42 U.S.C. Section9601(24), and (b) all other actions required by any Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat, xxxxx or otherwise take corrective action to address any Hazardous Material in the Environment;(ii) prevent the Release or threat of Release, or minimize the further Release of any Hazardous Material so it doesnot migrate or endanger or threaten to endanger public health, welfare or the Environment; or (iii) perform studiesand investigations in connection with, or as a precondition to, (i) or (ii) above.“Replacement Term Loans ” has the meaning assigned to such term in Section 9.02 ..-39-141683210_5 163765871_7 22-31184-1 C1.1 P61 |
“Removal Effective Date ” has the meaning assigned to such term in Section 8.06(b) ..“Required Amount of Loans and Commitments ” has the meaning assigned to such term in the definition ofthe term “Requisite Lenders.”“Requisite Lenders ” means, at any time, Lenders having more than fifty percent (50%) of the sum of (a) theaggregate amount of the Revolving Commitments or, after the Revolving Maturity Date, the Revolving Exposureand (b) the aggregate outstanding amount of all Term Loans;provided that (i) the Revolving Commitment of, andthe portion of the extensions of credit, as applicable, held or deemed held by, any Defaulting Lender shall beexcluded for purposes of making a determination of Requisite Lenders and (ii) the portion of any Term Loans heldby Debt Fund Affiliate Lenders in the aggregate in excess of 49.9% of the Required Amount of Loans andCommitments shall be disregarded in determining Requisite Lenders at any time. For purposes of the foregoing,“Required Amount of Loans and Commitments” shall mean, at any time, the amount of Loans and Commitmentsrequired to be held by Lenders in order for such Lenders to constitute “Requisite Lenders” (without giving effect tothe foregoing proviso).“Requisite Revolving Lenders ” means, collectively, Revolving Lenders having more than fifty percent(50%) of the aggregate outstanding amount of the Revolving Commitments or, after the Revolving Maturity Date,the Revolving Exposure;provided that the Revolving Commitment of, and the portion of the extensions of creditunder the revolving credit facility, as applicable, held or deemed held by, any Defaulting Lender shall be excludedfor purposes of making a determination of Requisite Revolving Lenders.“Resignation Effective Date ” has the meaning assigned to such term in Section 8.06(a) ..“Resolution Authority ” means an EEA Resolution Authority or, with respect to any UK FinancialInstitution, a UK Resolution Authority.“Restricted Payment ” means (x) any direct or indirect dividend or other distribution (whether in cash,securities or other property) with respect to any Equity Interests or Equity Rights in Holdings or any of itsSubsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similardeposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any EquityInterests or Equity Rights in Holdings, (y) any direct or indirect payment or other distribution (whether in cash,securities or other property) of, or in respect of, principal of or interest on any Subordinated Indebtedness, or anypayment or other distribution (whether in cash, securities or other property), including any sinking fund or similardeposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination in respect of anySubordinated Indebtedness (except (i) a payment of interest or principal at the Stated Maturity thereof, (ii) thepurchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fundobligation, principal installment or final maturity, in each case due within one year of the date of such purchase,repurchase or other acquisition or (iii) intercompany Indebtedness) and (z) any payment on or with respect to, orpurchase, redemption, retirement, acquisition, cancellation or termination of the Subordinated Notes.“Retained Proceeds ” has the meaning assigned to such term in Section 2.05(c)(ii) ..“Revolving Borrowing ” means a Borrowing comprised of Revolving Loans.“Revolving Borrowing Request ” means a Borrowing Request in connection with a Revolving Borrowing.“Revolving Commitment ” means, as to each Lender, as of any date of determination, the commitment ofsuch Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loanshereunder, as the same may be reduced from time to time pursuant to the provisions of this Agreement. The initialamount of each Lender’s Revolving Commitment is set forth onSchedule 2.01 , or in the Assignment andAssumption pursuant to which such Lender shall have assumed its Revolving Commitment. The aggregate amountof the Revolving Commitments as of the Closing Date is $250.0 million.-40-141683210_5 163765871_7 22-31184-1 C1.1 P62 |
“Revolving Commitment Period ” means (i) for the Revolving Commitments and Revolving Loans, theperiod from and including the Closing Date to but not including the Revolving Maturity Date, as applicable, or anyearlier date on which the Revolving Commitments to make Revolving Loans pursuant to Section 2.01 shall terminateas provided herein and (ii) with respect to Incremental Revolving Loans, Refinancing Revolving Loans andExtended Revolving Loans, the period as set forth in the applicable Incremental Facility Amendment, RevolvingExtension Agreement or Refinancing Amendment or such earlier date that the applicable Commitments areterminated.“Revolving Exposure ” means with respect to any Revolving Lender at any time, the sum of (a) theaggregate principal amount at such time of all outstanding Revolving Loans of such Revolving Lender, plus (b) suchRevolving Lender’s LC Exposure at such time, plus (c) such Revolving Lender’s Commitment Percentage of theaggregate principal amount at such time of all outstanding Swingline Loans.“Revolving Extension Agreement ” means an agreement entered into by and among, and in form andsubstance satisfactory to, the Administrative Agent, the Borrower and the Accepting Revolving Lenders partythereto.“Revolving Extension Offer ” has the meaning assigned to such term in Section 2.22(a) ..“Revolving Facility ” means, at any time, the aggregate amount of the revolving Commitments at such time.“Revolving Lender ” means a Lender with a commitment to make Revolving Loans or with any RevolvingExposure, in its capacity as such.“Revolving Loans ” means the revolving loans made by each Revolving Lender pursuant to Section 2.01(a) ..“Revolving Maturity Date ” means October 2,2025 2027; provided that if by April 1, 2027, the Term B-1 Loan has not been either (a) paid in full or (b) refinanced in full with Refinancing Term Loans having a maturity date that is, or extended in full such that the Term Loan Maturity Date is, no earlier than March 31, 2028, then the Revolving Maturity Date shall be April 2, 2027 .. “Rural Digital Opportunity Fund ” means the Rural Opportunity Digital Fund established by the FCCpursuant to its adoption of the Rural Digital Opportunity Fund Report and Order (FCC 20-5) adopted January 30,2020, and released February 7, 2020.“S&P ” means Standard & Poor’s Financial Services LLC, a division of S&P Global, Inc. and any successorthereto.“Sale and Leaseback Transaction ” has the meaning assigned to such term in Section 6.06 ..“Sanctioned Country ” means at any time, a country or territory or region which is itself the subject or targetof any Sanctions (including, as of the Closing Date, Cuba, Iran, North Korea, Syria and Crimea).“Sanctioned Person ” means, at any time, (a)any Person listed in any Sanctions-related list of designatedPersons maintained by OFAC (including, without limitation, OFAC’s Specially Designated Nationals and BlockedPersons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations SecurityCouncil, the European Union,Her His Majesty’s Treasury, or other relevant sanctions authority,(b)any Person operating, organized or resident in aSanctioned Country or (c) any Person owned or controlled by any such Personor Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions targetbased on the ownership of such legal entity by Sanctioned Xxxxx(s).“Sanctions ” means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions,trade embargoes and anti-terrorism laws, including but not limited to those imposed, administered or enforced fromtime to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), theUnited Nations Security Council, the European Union,Her His Majesty’s Treasury, or other relevant sanctions -41-141683210_5 163765871_7 22-31184-1 C1.1 P63 |
authority with jurisdiction over any Lender, Holdings, the Borrower or any of their respective Subsidiaries orAffiliates.“SEC ” means the Securities and Exchange Commission.“Secured Hedging Provider ” means any Person that, (a) at the time it enters into a Hedging Agreement witha Loan Party permitted under Article VI, is a Lender, an Affiliate of a Lender, the Administrative Agent or anAffiliate of the Administrative Agent, (b) at the time it (or its Affiliate) becomes a Lender or the AdministrativeAgent (including on the Closing Date), is a party to a Hedging Agreement with a Loan Party or (c) at the ClosingDate, is a party to a Hedging Agreement with a Loan Party and that is designated by the Borrower as a “SecuredHedging Provider” by written notice to the Administrative Agent substantially in the form ofExhibit L or such otherform reasonably acceptable to the Administrative Agent and the Borrower, in each case in its capacity as a party tosuch Hedging Agreement. For the avoidance of doubt, any secured Hedging Obligations existing on the ClosingDate and secured under the Existing Credit Agreement shall be deemed to be secured Hedging Obligationshereunder.“Secured Parties ” means (a) the Lenders, (b) each Cash Management Bank to which any Cash ManagementObligation is owed, (c) the Administrative Agent and the Collateral Agent (as defined in each of the SecurityAgreement and the Pledge Agreement), (d) each Issuing Bank, (e) each Secured Hedging Provider, (f) eachIndemnitee and (g) the successors and permitted assigns of each of the foregoing.“Securities Collateral ” means all Collateral constituting “Certificated Securities” as defined in the UCC.“Security Agreement ” means the Security Agreement dated as of October 2, 2020 by and among Holdings,the Borrower and certain of the Subsidiaries of the Borrower in favor of the Administrative Agent, as amended,amended and restated, supplemented, reaffirmed or otherwise modified from time to time.“Security Documents ” means the Security Agreement, the Pledge Agreement, the First Lien IntercreditorAgreement, the Junior Lien Intercreditor Agreement (if any) and the Mortgages executed by the Loan Parties andeach other security agreement, collateral agreement, pledge agreement or other instrument or document executed anddelivered pursuant to Section 5.11 , 5.12 or 5.16 to secure any of the Obligations.“Senior Secured Notes Documents ” means the Senior Secured Notes Indenture, the Senior Secured Notes,the related collateral documents, the First Lien Intercreditor Agreement and any other document, guarantee oragreement entered into in connection therewith.“Senior Secured Notes ” means the 6.500% Senior Secured Notes due 2028 issued by the Borrower on theClosing Date in an initial aggregate principal amount of $750,000,000 pursuant to the Senior Secured NotesIndenture.“Senior Secured Notes Indenture ” means that certain Indenture, dated as of the Closing Date, by and amongthe Borrower, the guarantors party thereto from time to time and Xxxxx Fargo Bank, National Association, as trusteeand as collateral agent, governing the Senior Secured Notes and the related note guarantees, as amended, restated,amended and restated, supplemented or otherwise modified or renewed, refunded, replaced, restructured, refinanced,repaid, increased or extended from time to time.“SOFR ” with respect means a rate equal to any day means the secured overnight financing rate published for such day as administered by the SOFR Administrator .. “SOFR Administrator” means the NYFRB, as the administrator of the benchmark (or a successor administrator of the secured overnight financing rate ), on the Federal Reserve Bank of New York’s Website .. “Solvent ” means, as to Holdings and its Subsidiaries on a particular date, that (i) the fair value of the assetsof Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities,direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the-42-141683210_5 163765871_7 22-31184-1 C1.1 P64 |
present fair saleable value of the property of Holdings and its Subsidiaries on a consolidated basis will be greaterthan the amount that will be required to pay the probable liability of Holdings and its Subsidiaries on a consolidatedbasis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and otherliabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able topay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities becomeabsolute and matured; (iv) Holdings and its Subsidiaries on a consolidated basis will not have unreasonably smallcapital with which to conduct the businesses in which they are engaged as such businesses are now conducted andare proposed to be conducted following the Closing Date; and (v) as of such date, Holdings does not intend to, andHoldings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts asthey mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and thetiming and amounts of cash to be payable on or in respect of its debts or the debts of any such Subsidiary.“Specified Investment Agreement Representations ” means the representations made by or with respect toHoldings and its Subsidiaries in the Investment Agreement as are material to the interests of the Lenders (in theircapacities as such) (but only to the extent that the Sponsor (or its Affiliates) has (or have) the right (taking intoaccount any applicable cure provisions) to terminate the Sponsor’s (and/or its Affiliates’) obligations under theInvestment Agreement or decline to make the Initial Purchase Price Payment (as defined in the InvestmentAgreement) (in each case, in accordance with the terms thereof) as a result of a breach of such representations in theInvestment Agreement.“Specified Representations ” means those representations and warranties of each Loan Party set forth inSections 3.01(a) and (d) , the first sentence of Section 3.02 , clause (a) of the second sentence of Section 3.02 , the lastsentence ofSection 3.03 ,3.04 ,3.14 ,3.18(i) ,3.20(a) ,(b) and(c) (limited to creation, validity and perfection andexcept with respect to items referred to on Schedule 5.17 and subject to the last paragraph ofSection 4.01 ) and3.21(d) (related only to the use of proceeds of the Initial Term Loans and the Revolving Loans made on the ClosingDate).“Sponsor ” means Searchlight Capital III, L.P., Searchlight III CVL, L.P., Searchlight Capital III PV, L.P.and Searchlight Capital Partners, L.P.“State PUC ” has the meaning assigned to such term in Section 3.22(a) ..“Stated Maturity ” means, with respect to any installment of interest or principal on any series ofIndebtedness, the date on which such payment of interest or principal was scheduled to be paid in the originaldocumentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem orrepurchase any such interest or principal prior to the date originally scheduled for the payment thereof.“Statutory Reserve Rate ” means a fraction (expressed as a decimal) the numerator of which is the numberone and the denominator of which is the number one minus the aggregate (expressed as a decimal) of the maximumreserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimalestablished by any Governmental Authority of the United States or of the jurisdiction of such currency or anyjurisdiction to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily usedto fund loans. Such reserve percentages shall include those imposed pursuant to such Regulation D. The StatutoryReserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.“Subfacility ” means the Initial Term Loan, the Term B-1 Loans, the Revolving Commitments, anyExtended Revolving Subfacility or any Extended Term Subfacility. “Subject Payments ” means, for any period, the aggregate amount of any (a) Restricted Payment madepursuant to Section 6.07(iii) or (b) Investments pursuant to Section 6.04(xiv) during such period.“Subject Prepayment Event ” has the meaning assigned to such term in Section 2.05(c) ..“Subordinated Indebtedness ” means any Indebtedness of any Loan Party that is by its terms subordinated inright of payment to the Obligations of such Loan Party arising under the Loans or the Guaranty Agreement, asapplicable, pursuant to a written agreement to that effect.-43-141683210_5 163765871_7 22-31184-1 C1.1 P65 |
“Subordinated Notes ” means the Subordinated Notes of Holdings substantially in the form set forth inExhibit A to the Investment Agreement (with (i) the blanks and brackets and similar items therein completed asagreed by Holdings and the holder of the Subordinated Notes and (ii) any other modifications that is not prohibitedpursuant to Section 6.10(b) ), if issued pursuant to the terms thereunder.“Subsidiary ” means, with respect to any Person:(a)any corporation of which more than 50% of the outstanding capital stock having ordinaryvoting power to elect a majority of the board of directors of such corporation (irrespective of whether at thetime capital stock of any other class or classes of such corporation shall or might have voting power uponthe occurrence of any contingency) is at the time directly or indirectly owned by such Person, by suchPerson and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of suchPerson; or(b)any partnership of which more than 50% of the outstanding partnership interests havingthe power to act as a general partner of such partnership (irrespective of whether at the time any partnershipinterests other than general partnership interests of such partnership shall or might have voting power uponthe occurrence of any contingency) are at the time directly or indirectly owned by such Person, by suchPerson and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of suchPerson.Unless otherwise indicated, when used in this Agreement, the term “Subsidiary” shall refer to a Subsidiaryof Holdings and shall not include any Unrestricted Subsidiary. Notwithstanding the foregoing (except as used in thedefinition of “Unrestricted Subsidiary” contained herein), an Unrestricted Subsidiary shall be deemed not to be aSubsidiary of Holdings, the Borrower or any of their respective Subsidiaries for purposes of this Agreement or anyother Loan Document, and the financial statements and consolidation of accounts of Holdings and its Subsidiariesshall not, for purposes of this Agreement, be consolidated with any Unrestricted Subsidiary.“Subsidiary Loan Party ” means each of the Borrower’s Domestic Subsidiaries that guarantee theObligations pursuant to the Guaranty Agreement.“Supported QFC ” has the meaning assigned to such term in Section 9.24 ..“Swap Obligation ” means, with respect to any Loan Party, any obligation to pay or perform under anyagreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the CommodityExchange Act.“Swingline Lender ” means Xxxxx Fargo, in its capacity as lender of Swingline Loans.“Swingline Loan ” has the meaning assigned to such term in Section 2.04(a) ..“Swingline Sublimit ” has the meaning assigned to such term as Section 2.04(a) ..“Taking ” means any taking of any Property of Holdings or any of its Subsidiaries or any portion thereof, inor by condemnation or other eminent domain proceedings pursuant to any law, general or special, or by reason of thetemporary requisition or use of any Property of Holdings or any Subsidiary or any portion thereof, by anyGovernmental Authority.“Tax Group ” has the meaning assigned to such term in Section 6.07(viii) ..“Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by an Governmental Authority, including any interest,fines, addition to tax or penalties applicable thereto.“Term B-1 Loan ” shall have the meaning assigned to such term in Amendment No. 2.-44-141683210_5 163765871_7 22-31184-1 C1.1 P66 |
“Term B-1 Lenders ” shall have the meaning assigned to such term in Amendment No. 2.“Term B-1 Commitments ” shall have the meaning assigned to such term in Amendment No. 2.“Term Lenders ” means the collective reference to the Initial Term Lenders and, without duplication, theTerm B-1 Lenders, the Incremental Term Lenders, the Extended Term Lenders and the Refinancing Term Lenders.“Term Loan Borrowing ” means a borrowing comprised of Term Loans.“Term Loan Maturity Date ” means October 2, 2027. “Term Loan Modification Agreement ” means an agreement entered into, and in form and substancesatisfactory to, the Administrative Agent, the Borrower and the Accepting Term Lenders.“Term Loan Modification Offer ” has the meaning assigned to such term in Section 2.22 ..“Term Loans ” means the collective reference to the Initial Term Loan, the Term B-1 Loans, theIncremental Term Loans, the Refinancing Term Loans and the Extended Term Loans.“Term SOFR ” means, (a) for any calculation with respect to a Term SOFR Loan or a Benchmark Replacement (LIBO), the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that, solely in connection with a Term SOFR Loan, if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date (Non-LIBO) with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, (b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date (Non-LIBO) with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day. “Term SOFR Adjustment” means a percentage equal to 0.10% per annum. “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). “Term SOFR Borrowing” means a Borrowing comprised of Term SOFR Loans. “Term SOFR Reference Rate ” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body .. -45-141683210_5 163765871_7 22-31184-1 C1.1 P67 |
“Term SOFR Loan” means any Loan bearing interest at a rate determined by reference to the Adjusted Term SOFR in accordance with the provisions of Article II .. “Terminated Lender ” has the meaning assigned thereto in Section 2.20 ..“Termination Value ” means, in respect of any one or more Hedging Agreements, after taking into accountthe effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on orafter the date such Hedging Agreements have been closed out and termination value(s) determined in accordancetherewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s)determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or moremid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements(which may include a Lender or any Affiliate of a Lender).“Test Period ” means, on any date of determination, the period of four consecutive Fiscal Quarters ofHoldings then most recently ended (taken as one accounting period) for which internal financial statements areavailable“Testing Threshold ” being met on any date means that as of such date the aggregate amount of (a)Revolving Loans and Swingline Loans outstanding at such time plus (b) the aggregate LC Exposure at such time(excluding, in the case of this clause (b), LC Exposure comprising (i) the aggregate undrawn amount of Letters ofCredit issued in connection with the Rural Digital Opportunity Fund (the “RDOF Letters of Credit ”), (ii) theaggregate undrawn amount of other Letters of Credit in an amount not to exceed $20.0 million, and (iii) theaggregate amount of Letters of Credit that have been Cash Collateralized) exceeds 35.0% of the aggregate amount ofall Revolving Commitments (excluding the RDOF Letters of Credit) outstanding at such time.“Total Assets ” means, at any date, total assets of Holdings and its Subsidiaries calculated in accordancewith GAAP on a consolidated basis as of such date.“Total Net Debt ” means, at a particular date, the aggregate principal amount of Consolidated Indebtednessat such date, net of (i) prior to the Unlimited Cash Netting Date, the lesser of (a) the amount of Qualified Cash andCash Equivalents and (b) $50.0 million and (ii) on and after the Unlimited Cash Netting Date, the amount ofQualified Cash and Cash Equivalents.“Total Net Leverage Ratio ” means, at any date, the ratio of (a) Total Net Debt as of such date to (b)Consolidated EBITDA for the Test Period most recently ended (calculated on a pro forma basis as described in thedefinition of “Consolidated EBITDA”); provided that for purposes of calculating Total Net Leverage Ratio, allIndebtedness under the Subordinated Notes shall be excluded from Total Net Debt. In the event that Holdings, theBorrower or any Subsidiary thereof incurs, repays, repurchases or redeems any Indebtedness (other than fluctuationsin revolving borrowings in the ordinary course of business) subsequent to the commencement of the period for whichthe Total Net Leverage Ratio is being calculated but prior to or in connection with the event for which thecalculation of the Total Net Leverage Ratio is made, then the Total Net Leverage Ratio shall be calculated givingpro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness as if the same hadoccurred at the beginning of the applicable four-quarter period.“Total Revolving Commitment ” means, at any time, the aggregate amount of the Revolving Commitments,as in effect at such time.“Trade Date ” has the meaning assigned thereto in the Assignment and Assumption.“Transaction Fees ” means, without duplication, all non-recurring transaction fees, charges and otheramounts related to (a) this Agreement (including any amendment or other modification hereof or thereof), (b) anyPermitted Acquisition (including, without limitation, the cost of obtaining a fairness opinion and prepaid premiumswith respect to directors’ and officers’ insurance, but excluding all amounts otherwise included in accordance withGAAP in determining Consolidated EBITDA) and (c) the incurrence, prepayment or repayment of Indebtednesspermitted hereunder (including premiums, make whole or penalty payments in connection therewith).-46-141683210_5 163765871_7 22-31184-1 C1.1 P68 |
supplements and other modifications are not prohibited by any Loan Document; and (b) references to anyApplicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing,supplementing or interpreting such Applicable Law.Section 1.07Times of Day .. Unless otherwise specified, all references herein to times of day shall bereferences to Eastern time (daylight or standard, as applicable).Section 1.08Letter of Credit Amounts .. Unless otherwise specified, all references herein to the amountof a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit aftergiving effect to all increases thereof contemplated by such Letter of Credit, whether or not such maximum faceamount is in effect at such time.Section 1.09Limited Condition Transactions ..(a)Notwithstanding anything to the contrary provided in this Agreement, when calculating theavailability under any basket or ratio under this Agreement or compliance with any provision of this Agreement inconnection with any Limited Condition Transaction and any actions or transactions related thereto (includingacquisitions, Investments, the incurrence or issuance of Indebtedness, and the use of proceeds thereof, the incurrenceof Liens, repayments, dividends and Asset Sales or distributions), in each case, at the option of the Borrower (theBorrower’s election to exercise such option, an “LCT Election ”), the date of determination for availability under anysuch basket or ratio and whether any such action or transaction is permitted (or any requirement or condition thereforis complied with or satisfied (including as to the absence of any continuing Default or Event of Default)) under thisAgreement shall be deemed to be the date (the “LCT Test Date ”) either (a) that the definitive agreements for suchLimited Condition Transaction are entered into (or, if applicable, the date of delivery of an irrevocable notice,declaration of a dividend or distribution or similar event), (b) solely in connection with an acquisition to which theUnited Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 announcement” of afirm intention to make an offer is published on a regulatory information service in respect of a target of a LimitedCondition Transaction is made (or that equivalent notice under equivalent laws, rules or regulations in such otherapplicable jurisdiction is made), (c) that notice is given with respect to any redemption, repurchase, defeasance,satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocablenotice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment or (d) thatnotice is given with respect to any dividend or other distribution requiring irrevocable notice in advance thereof and,in each case, if, after giving pro forma effect to the Limited Condition Transaction and any actions or transactionsrelated thereto (including acquisitions, Investments, the incurrence or issuance of Indebtedness, Disqualified Stockor Preferred Stock and the use of proceeds thereof, the incurrence of Liens, repayments, dividends or otherdistributions and dispositions) and any related pro forma adjustments permitted hereunder, Holdings, the Borroweror any of their respective Subsidiaries would have been permitted to take such actions or consummate suchtransactions on the relevant LCT Test Date in compliance with such ratio, test or basket (and any relatedrequirements and conditions), such ratio, test or basket (and any related requirements and conditions) shall bedeemed to have been complied with (or satisfied) for all purposes (in the case of Liens, for example, whether suchLiens are to secure Indebtedness that is committed, issued or incurred at the LCT Test Date or at any timethereafter); provided that (a) if financial statements for one or more subsequent Fiscal Quarters shall have becomeavailable, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis ofsuch financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicableLCT Test Date for purposes of such ratios, tests or baskets and (b) except as contemplated in the foregoing clause(a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not bedetermined or tested at any time after the applicable LCT Test Date for such Limited Condition Transaction and anyactions or transactions related thereto (including acquisitions, Investments, the incurrence or issuance ofIndebtedness, and the use of proceeds thereof, the incurrence of Liens, repayments, dividends or distributions andAsset Sales).(b)For the avoidance of doubt, if the Borrower has made an LCT Election, (1) if any of the ratios,tests or baskets for which compliance was determined or tested as of the LCT Test Date would at any time after theLCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in anysuch ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets of Holdings or the-50-141683210_5 163765871_7 22-31184-1 C1.1 P72 |
2021, it would no longer persuade or compel contributing banks to make rate submissions to the On March 5, 2021, ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “ IBA ”) for purposes of the IBA setting the London interbank offered rate .. “IBA”), the administrator of the London interbank offered rate , and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of the IBA, announced in public statements (the “Announcements”) that the final publication or representativeness date for the Loan Interbank offered rate for Dollars for (a) 1 week and 2 month tenor settings was December 31, 2021 and (b) overnight, 1 month, 3 month, 6 month and 12 month tenor settings will be June 30, 2023. No successor administrator for IBA was identified in such Announcements. As a result, it is possible that commencingin 2022 immediately after such dates , the London interbank offered rate for such tenors may no longer be available or may no longer be deemedan appropriate a representative reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative or ABR Loans (when determined by referencerates tobe used in place clause (c)(i) of the definition of Alternate Base Rate). The is no assurance that the dates set forth in the Announcements will not change or that IBA or the FCA will not take further actions that could impact the availability, composition or characteristics ofthe any London interbank offered rate. Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election,Section 2.12(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent willpromptly notify the Borrower, pursuant toSection 2.12 (b) , of any change to the reference rate upon which the interest rate on Eurodollar Loans and ABR Loans (when determined by reference to clause (c)(i) of the definition of Alternate Base Rate) is based. However, the Administrative Agent does not warrant or accept any responsibility for,and shall not have any liability with respect to, the administration, submission or any other matter related to theTerm SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, the London interbank offered rate, or any component definition thereof or other rates inthe any such definition of “LIBO Rate ” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any suchalternative, successor or replacement rate implemented pursuant toSection 2.12 (b) , whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii)or (b) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 2.12(b) ), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, orproduce the same value or economic equivalence of, the LIBO Rate or any other Benchmark or have the same volume or liquidity as did the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or the London interbank offered rate prior to its discontinuance or unavailability. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted Term SOFR, Term SO FR, any other Benchmark (Non-LIBO) or any alternative, successor or replacement rate (including any Benchmar k Replacement (Non-LIBO)) or any relevant adjustments thereto and such transactions may be adverse to the Borrower .. The Administrative Agent may select information sources or services in its reasonable discretion to ascert ain the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark (Non-LIBO), any component definition thereof or rates referred to in the definition thereof, i n 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 calculation of any such rate (or component thereof) provided by any such information source or service. ARTICLE XXXXX CREDITSSection 2.01Credit Commitments ..(a)Subject to the terms and conditions hereof:(i)Each Initial Term Lender severally agrees to make an Initial Term Loan on the ClosingDate to the Borrower in Dollars in the amount of the Initial Term Commitment of such Initial Term Lender(net of any upfront fees or original issue discount due and payable thereon).(ii)Each Revolving Lender severally agrees to make Revolving Loans in Dollars to theBorrower from time to time during the Revolving Commitment Period;provided that the amount of-52-141683210_5 163765871_7 22-31184-1 C1.1 P74 |
Revolving Loans that may be borrowed on the Closing Date will be limited to an amount sufficient to fund(i) any original issue discount or upfront fees required to be funded on the Closing Date pursuant to the“Market Flex” and/or “Securities Demand” provisions in the Fee Letter and (ii) any ordinary courseworking capital requirements of the Borrower and its Subsidiaries on the Closing Date.(iii)Each Incremental Term Lender severally agrees, if such Incremental Term Lender has socommitted pursuant toSection 2.21 , to make Incremental Term Loans to the Borrower in an aggregateprincipal amount not to exceed its Incremental Term Commitment and otherwise on the terms and subjectto the conditions set forth in the Incremental Facility Amendment to which such Lender is a party.(iv)Each Extending Term Lender agrees, severally and not jointly, if such Extending TermLender has so committed pursuant toSection 2.22 , to make Extended Term Loans to the Borrower in anaggregate principal amount not to exceed its Commitment with respect thereto and otherwise on the termsand subject to the conditions set forth in the Extension Amendment to which such Lender is a party.(v)Each Refinancing Term Lender agrees, severally and not jointly, if such RefinancingTerm Lender has so committed pursuant toSection 2.25 , to make Refinancing Term Loans to the Borrowerin an aggregate principal amount not to exceed its Refinancing Term Commitment and otherwise on theterms and subject to the conditions set forth in the Refinancing Amendment to which such Lender is a party.(b)Amounts repaid or prepaid in respect of Term Loans may not be reborrowed. During theRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying theRevolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.Notwithstanding anything to the contrary contained in this Agreement, in no event may Revolving Loans beborrowed under thisArticle II if, after giving effect thereto (and to any concurrent repayment or prepayment ofLoans), (i) the Aggregate Revolving Exposure would exceed the Total Revolving Commitment then in effect or (ii)the Revolving Exposure of any Revolving Lender would exceed such Revolving Lender’s Revolving Commitment.(c)(i) The Revolving Loans and the Term Loans may from time to time be (i A )Eurodollar Term SOFR Loans, (ii B ) ABR Loans or (iii C ) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance withSections 2.02 and2.03 and (ii) the Term Loans may from time to time be (A) Eurodollar Loans, (B) ABR Loans or (C) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.02 and 2.03 .. (d)Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of thesame Type made by the Revolving Lenders ratably in accordance with their respective Revolving Commitments.The failure of any Revolving Lender to make any Revolving Loan required to be made by it shall not relieve anyother Lender of its obligations hereunder;provided that the Revolving Commitments of the Revolving Lenders areseveral and no Revolving Lender shall be responsible for any other Lender’s failure to make Revolving Loans asrequired.Section 2.02Procedure for Borrowing ..(a)The Borrower may borrow under this Agreement (subject, in each case, to the limitations inSection 2.01(b) ) by giving the Administrative Agent notice substantially in the form ofExhibit A (a “Borrowing Request ”), which notice must be received by the Administrative Agent prior to (i) 11:00 a.m., three Business Daysprior to the requested Borrowing Date, in the case of a Eurodollar Borrowing, (ii) 11:00 a.m. three U.S. Government Securities Business Days prior to the requested Borrowing Date, in the case of a Term SOFR Borrowing or (ii iii ) 11:00 a.m., on the Business Day prior to the requested Borrowing Date, in the case of an ABR Borrowing. TheBorrowing Request for each Borrowing shall specify (A) the amount to be borrowed, (B) the requested BorrowingDate, (C) whether the Borrowing is to be of Eurodollar Loans, Term SOFR Loans or ABR Loans, (D) if the Borrowing is to be of Eurodollar Loans or Term SOFR Loans , the length of the initial Interest Period therefor, and (E) the location and number of the account to which funds are to be disbursed, which shall comply with therequirements of this Agreement. If no election as to the Type of Borrowing is specified, then the requestedBorrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar-53-141683210_5 163765871_7 22-31184-1 C1.1 P75 |
Borrowing or Term SOFR Borrowing , then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.(b)Each Revolving Borrowing shall be in a minimum aggregate principal amount $3.0 million or anintegral multiple of $1.0 million in excess thereof (or, if less, the aggregate amount of the then Available RevolvingCommitments).(c)Upon receipt of a Revolving Borrowing Request, the Administrative Agent shall promptly notifyeach Revolving Lender of the aggregate amount of such Revolving Borrowing and such Revolving Lender’sCommitment Percentage thereof, which shall be based on the respective Available Revolving Commitments of allthe Revolving Lenders. Each Revolving Lender will make such Revolving Lender’s Commitment Percentage ofeach such Revolving Borrowing available to the Administrative Agent for the account of the Borrower at theAdministrative Agent’s Office prior to 1:00 p.m. on the Borrowing Date requested by the Borrower in fundsimmediately available to the Administrative Agent. Amounts so received by the Administrative Agent will promptlybe made available to the Borrower by the Administrative Agent crediting the account of the Borrower identified inthe most recent notice substantially in the form ofExhibit H (a “Notice of Account Designation ”) delivered by theBorrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agentby the Revolving Lenders and in like funds as received by the Administrative Agent;provided that if on theBorrowing Date of any Revolving Loans to be made to the Borrower, any Swingline Loans made to the Borrower orLC Disbursements for the account of the Borrower shall be then outstanding, the proceeds of such Revolving Loansshall first be applied to pay in full such Swingline Loans or LC Disbursements, with any remaining proceeds to bemade available to the Borrower as provided above; and provided further that ABR Revolving Loans made to financethe reimbursement of an LC Disbursement as provided inSection 2.06(e) shall be remitted by the AdministrativeAgent to the applicable Issuing Bank.(d)Each applicable Term Lender will make its Term Loan Borrowing available to the AdministrativeAgent for the account of the Borrower at the Administrative Agent’s Office prior to 10:00 a.m. on the BorrowingDate requested by the Borrower in funds immediately available to the Administrative Agent. Amounts so receivedby the Administrative Agent will be made available to the Borrower by 10:00 a.m. on the Borrowing Date by theAdministrative Agent crediting the account of the Borrower identified in the most recent Notice of AccountDesignation delivered by the Borrower to the Administrative Agent with the aggregate of the amounts madeavailable to the Administrative Agent by the applicable Term Lenders and in like funds as received by theAdministrative Agent.Section 2.03Conversion and Continuation Options for Loans ..(a)The Borrower may elect from time to time to convert (i) Eurodollar Loans or Term SOFR Loans to ABR Loans, by giving the Administrative Agent irrevocable prior written notice of such election in the formattached asExhibit I (a “Notice of Conversion/Continuation ”) not later than 11:00 a.m. on the Business Day prior toa requested conversion or (ii) ABR Loans to Eurodollar Loansor Term SOFR Loans by giving the Administrative Agent a Notice of Conversion/Continuation not later than 11:00 a.m.(x) three Business Days prior to a requested conversion to a Eurodollar Loan and (y) three U.S. Government Securities Business Days prior to a requested conversion to a Term SOFR Loan ;provided that if any such conversion of Eurodollar Loans or Term SOFR Loans is made other than on the last day of an Interest Period with respect thereto, the Borrower shall pay any amounts dueto the Lenders pursuant to Section 2.17 as a result of such conversion. Any such Notice of Conversion/Continuationwith respect to the conversion to Eurodollar Loansor Term SOFR Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any Notice of Conversion/Continuation theAdministrative Agent shall promptly notify each relevant Lender thereof. All or any part of the outstandingEurodollar Loans, Term SOFR Loans or ABR Loans may be converted as provided herein; provided that (i) no Loan may be converted into a Eurodollar Loan or a Term SOFR Loan when any Default has occurred and is continuing, (ii) no Revolving Loan may be converted into a Eurodollar Term SOFR Loan after the date that is one month prior to the Revolving Maturity Date, and (iii) no Term B-1 Loan may be converted into a Eurodollar Loan after the date that is one month prior to the Term Loan Maturity Date, (iv) no Revolving Loan may be converted to a Eurodollar Loan and (v) Term Loans may only be converted from ABR Loans to Eurodollar Loans .. -54-141683210_5 163765871_7 22-31184-1 C1.1 P76 |
(b)In the event and on such occasion that the Aggregate Revolving Exposure exceeds the TotalRevolving Commitment, the Borrower shall be obligated to immediately prepay Revolving Borrowings or SwinglineBorrowings (or, if no such Borrowings are outstanding, deposit cash collateral in the account established with theAdministrative Agent pursuant to Section 2.06(i) ) to the extent of such excess.(c)(i) If Holdings or any Subsidiary shall incur or permit the incurrence of any Indebtedness(including pursuant to debt securities which are convertible into, or exchangeable or exercisable for, any EquityInterest or Equity Rights) (other than Excluded Debt Issuances) (each, a “Debt Incurrence ”), 100% of the NetProceeds thereof shall be applied immediately after receipt thereof toward the prepayment of Term Loans inaccordance with Section 2.05(d) below.(ii)If Holdings or any of its Subsidiaries shall receive Net Proceeds from any Asset Sale or frominsurance or condemnation recoveries in respect of any Destruction or any proceeds or awards in respect of anyTaking (the date of any such receipt, a “Subject Prepayment Event ”), an amount equal to 100% the percentage ofsuch Net Proceeds shall be applied toward the prepayment of (i) the Term Loans and (ii) up to a ratable amount ofother Indebtedness secured by a Lien on the Collateral that rankspari passu with the Liens on the Collateral thatsecure the Obligations to the extent required by the documents governing such Indebtedness;providedthat any suchprepayment under this clause (ii) shall be made ratably with repayment of the Term Loans;provided if and to theextent that (1) no Default exists on the date of such Subject Prepayment Event, or, in the case of an Asset Sale,would arise as a result of such Asset Sale and (2) if all or any portion of such Net Proceeds are reinvested, orcommitted to be reinvested, in the business of Holdings or any of its Subsidiaries (x) within 365 days (the“Reinvestment Period ”) after receipt by Holdings or any of its Subsidiaries thereof or (y) if committed to bereinvested on or prior to the 365th day after receipt Holdings or any of its Subsidiaries thereof, are subsequentlyreinvested in the business of Holdings or any of its Subsidiaries within 180 days following the end of theReinvestment Period, only the remaining Net Proceeds must be applied to prepay the Term Loans or otherIndebtedness as described above; provided further, that, if at the time of receipt of such Net Proceeds by Holdings orany of its Subsidiaries, or at any time during the Reinvestment Period, after giving effect to any such Asset Sale, ifrelevant, and the application of the proceeds thereof on a pro forma basis, (1) the Consolidated Senior SecuredLeverage Ratio is less than or equal to 2.50 to 1.00, only an amount equal to 50% of such Net Proceeds shall besubject to this clause (c)(ii) and/or (2) the Consolidated Senior Secured Leverage Ratio is less than or equal to 2.00to 1.00, none of such Net Proceeds shall be subject to this clause (c)(ii) (and the remaining 50% or 100%, asapplicable, of such Net Proceeds will constitute “Retained Proceeds”). Any Retained Proceeds may be retained bythe Borrower and may be used for any purpose permitted hereunder and will, if so retained by the Borrower,constitute a portion of the Cumulative Credit.(iii)Within 10 days of the delivery of financial statements and the related Compliance Certificatereferred to inSection 5.01(a) , beginning with the financial statements for the Fiscal Year ending December 31,2021, the Borrower shall apply an amount, if positive, equal to:(A)the Available Cash for such Fiscal Year multiplied by the percentage set forth in the tablebelow; minus(B)the sum of the aggregate amount of optional prepayments of the Term Loans pursuant toSection 2.05 ,plus up to a ratable amount of optional prepayments of other Indebtedness secured by a Xxxxxx the Collateral that rankspari passu with the Liens on the Collateral that secure the Obligationsplusprepayments of the Revolving Facility to the extent the Revolving Commitments are permanently reducedby the amount of such repayments at the time of such prepayments in each case to the extent funded withInternally Generated Funds, made during such Fiscal Year or following the end of such Fiscal Year butprior to the date of such prepayment (provided however, for the avoidance of doubt that any such amountsshall only be credited in one Fiscal Year), towards prepayment of (x) the Term Loans and (y) up to aratable amount of other Indebtedness secured by a Lien on the Collateral that rankspari passu with theLiens on the Collateral that secure the Obligations to the extent required by the documents governing suchIndebtedness;providedthat any such prepayment under this clause (y) shall be made no more than ratablywith repayment of the Term Loans:-57-141683210_5 163765871_7 22-31184-1 C1.1 P79 |
(i)the Administrative Agent determines (which determination shall be conclusive absentmanifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or , the Adjusted Term SOFR, the LIBO Rate or Term SOFR , as applicable (including because the LIBO Screen Rateor the Term SOFR Reference Rate, as applicable, is not available or published on a current basis), for such Interest Period,(ii)the Administrative Agent is advised by the Requisite Lenders that the Adjusted LIBORate or , the Adjusted Term SOFR, the LIBO Rate or Term SOFR , as applicable, for Dollars for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making ormaintaining their Loans (or its Loan) included in such Borrowing for Dollars such Interest Period, or(iii)Dollar deposits are not being offered to banks in the London interbank Eurodollar marketfor the applicable amount and Interest Period of such Eurodollar Loan,then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy orelectronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower andthe Lenders that the circumstances giving rise to such notice no longer exist, if (A) any Borrowing Request requestsa Eurodollar Borrowing or Term SOFR Borrowing (as applicable) , such Borrowing shall be made as an ABR Borrowing or (B) any Notice of Conversion/Continuation requests a conversion to or continuation of any EurodollarBorrowing or Term SOFR Borrowing (as applicable) , such Notice of Conversion/Continuation shall be disregarded; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Typeof Borrowings shall be permitted.(b)Notwithstanding anything to the contrary herein or in any other Loan Document, upon theoccurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agentand the Borrower may amend this Agreement to replace the LIBO Rate or the other applicable Benchmark that is subject to such Benchmark Transition Event (Non-LIBO) with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Dayafter the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as theAdministrative Agent has not received, by such time, written notice of objection to such amendment from Lenderscomprising the Requisite Lenders of each Class. Any such amendment with respect to an Early Opt-in Election willbecome effective on the date that Lenders comprising the Requisite Lenders of each Class have delivered to theAdministrative Agent written notice that such Requisite Lenders accept such amendment. No replacement of LIBORateor any other applicable Benchmark with a Benchmark Replacement pursuant to thisSection 2.12 will occur prior to the applicable Benchmark Transition Start Date.(c)In connection with the implementation of a Benchmark Replacement, the Administrative Agentwill have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstandinganything to the contrary herein or in any other Loan Document, any amendments implementing such BenchmarkReplacement Conforming Changes will become effective without any further action or consent of any other party tothis Agreement.(d)The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrenceof a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark ReplacementDate and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) theeffectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of anyBenchmark Unavailability Period. Any determination, decision or election that may be made by the AdministrativeAgent or Lenders pursuant to thisSection 2.12 , including any determination with respect to a tenor, rate oradjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take orrefrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or theirsole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuantto this Section 2.12 ..(e)Upon the Borrower’s receipt of notice of the commencement of a Benchmark UnavailabilityPeriod, the Borrower may revoke any request for a Eurodollar Borrowing or Term SOFR Borrowing of, conversion -66-141683210_5 163765871_7 22-31184-1 C1.1 P88 |
(i)impose, modify or deem applicable any reserve, special deposit, compulsory loan,insurance charge or similar requirement against assets of, deposits with or for the account of, or advances,loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected inthe LIBO Rate) or any Issuing Bank;(ii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxesdescribed in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes)on its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities orcapital attributable thereto; or(iii)impose on any Lender or any Issuing Bank or the London interbank market any othercondition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Loans or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such otherRecipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make anysuch Loan), or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in,issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter ofCredit), or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such otherRecipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender,such Issuing Bank or other Recipient, the Borrower shall promptly pay to any such Lender, such Issuing Bank orother Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, suchIssuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.(b)Capital Requirements .. If any Lender or any Issuing Bank determines that any Change in Lawaffecting such Lender or such Issuing Bank or any lending office of such Lender or such Lender’s or such IssuingBank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducingthe rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such IssuingBank’s holding company, if any, as a consequence of this Agreement, the Revolving Commitment of such Lender orthe Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters ofCredit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’sor such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into considerationsuch Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holdingcompany with respect to capital adequacy and liquidity), then from time to time upon written request of such Lenderor such Issuing Bank the Borrower shall promptly pay to such Lender or such Issuing Bank, as the case may be, suchadditional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such IssuingBank’s holding company for any such reduction suffered.(c)Certificates for Reimbursement .. A certificate of a Lender, or an Issuing Bank or such otherRecipient setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank, suchother Recipient or any of their respective holding companies, as the case may be, as specified in paragraph (a) or (b)of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall paysuch Lender or such Issuing Bank or such other Recipient, as the case may be, the amount shown as due on any suchcertificate within ten (10) days after receipt thereof.(d)Delay in Requests .. Failure or delay on the part of any Lender or any Issuing Bank or such otherRecipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or suchIssuing Bank’s or such other Recipient’s right to demand such compensation;provided that the Borrower shall notbe required to compensate any Lender or an Issuing Bank or any other Recipient pursuant to this Section for anyincreased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or suchIssuing Bank or such other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise tosuch increased costs or reductions, and of such Lender’s or such Issuing Bank’s or such other Recipient’s intentionto claim compensation therefor (except that if the Change in Law giving rise to such increased costs or reductions isretroactive, then the six-month period referred to above shall be extended to include the period of retroactive effectthereof).-69-141683210_5 163765871_7 22-31184-1 C1.1 P91 |
(ii)Without limiting the generality of the foregoing:(A)Any Lender that is a U.S. Person shall deliver to the Borrower and the AdministrativeAgent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from timeto time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two dulyexecuted and properly completed originals of IRS Form W-9 certifying that such Lender is exempt fromUnited States federal backup withholding Tax;(B)any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to theBorrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes aLender under this Agreement (and from time to time thereafter upon the reasonable request of the Borroweror the Administrative Agent), two duly executed and properly completed originals of whichever of thefollowing is applicable:(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty towhich the United States is a party (x) with respect to payments of interest under any LoanDocument, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemptionfrom, or reduction of, United States federal withholding Tax pursuant to the “interest” article ofsuch tax treaty and (y) with respect to any other applicable payments under any Loan Document,IRS Form W-8BEN or Form W-8BEN-E, as applicable, establishing an exemption from, orreduction of, United States federal withholding Tax pursuant to the “business profits” or “otherincome” article of such tax treaty;(2)IRS Form W-8ECI;(3)in the case of a Foreign Lender claiming the benefits of the exemption forportfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form ofExhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning ofSection 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section881(c)(3)(C) of the Code and that no payments under any Loan Document are effectivelyconnected with such Foreign Lender’s conduct of a trade or business within the United States (a“U.S. Tax Compliance Certificate ”) and (y) IRS Form W-8BEN or IRS Form W-8BEN-E, asapplicable; or(4)to the extent a Foreign Lender is not the beneficial owner, IRS Form W-8IMY,accompanied by executed copies of IRS Form W-8ECI,IRS Form W-8BEN or IRS FormW-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form ofExhibit E-2 orExhibit E-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, asapplicable;provided that if the Foreign Lender is a partnership (and not a participating Lender)and one or more direct or indirect partners of such Foreign Lender are claiming the portfoliointerest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificatesubstantially in the form of Exhibit E-4 on behalf of such direct and indirect partner(s);(C)any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to theBorrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes aLender under this Agreement (and from time to time thereafter upon the reasonable request of the Borroweror the Administrative Agent), two duly executed and properly completed originals of any otherdocumentation prescribed by Applicable Law as a basis for claiming exemption from or a reduction inUnited States federal withholding Tax, together with such supplementary documentation as may beprescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine thewithholding or deduction required to be made; and(D)if a payment made to a Lender under any Loan Document would be subject to UnitedStates federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the-71-141683210_5 163765871_7 22-31184-1 C1.1 P93 |
Commitment ” and collectively with the Incremental Term Loans, the “Incremental Facilities ” and any Loans madepursuant to such Incremental Revolving Commitment, “Incremental Revolving Loans ”) in an aggregate amount ofnot less than $25.0 million for any such request. The sum of the aggregate amount of all Incremental Facilities andthe aggregate principal amount of all Indebtedness issued pursuant toSection 6.01(a)(iv) shall not exceed the sum(the “Available Incremental Amount ”) of (A) $300.0 millionplus (B) such amount which would not cause theConsolidated Senior Secured Leverage Ratio, calculated on a pro forma basis as of the most recent date for whichfinancial statements have been delivered pursuant toSection 5.01 after giving effect to the incurrence of suchIndebtedness and the use of proceeds thereof (including, without limitation, the application of any proceeds thereofto the refinancing or repayment of the Term Loans or a Permitted Refinancing of Indebtedness incurred underSection 6.01(a)(iv) ) but without netting the proceeds thereof and assuming (1) in the case of any IncrementalRevolving Commitment that such Incremental Revolving Commitment is fully drawn and (2) that all Indebtednessincurred pursuant toSection 6.01(a)(iv) is secured Indebtedness for so long as it is outstanding (whether or not suchIndebtedness is in fact so secured), to exceed 3.70 to 1.00 (it being understood and agreed for avoidance of doubtthat any Indebtedness incurred under this clause (B) shall not reduce the $300 million limit in clause (A) above).(b)Each Incremental Term Loan shall be subject to the following requirements: (i) other than pricing,maturity and amortization, the Incremental Term Loans shall have the same terms as the Term B-1 Loans existingimmediately prior to the effectiveness of the amendment creating such Incremental Term Loans, (ii) suchIncremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, theIncremental Term Lenders making such Incremental Term Loan and the Borrower, but will not in any event have ashorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term B-1Loans or a maturity date earlier than the Term Loan Maturity Date; and (iii) in the event that the All-in Yield for anytranche of the Incremental Term Loans incurred within 12 months of the Closing Date is more than 50 basis pointsgreater than the All-in Yield for the Term B-1 Loans, then the Applicable Rate for the Term B-1 Loans shall beincreased to the extent necessary such that the All-in Yield for the Term B-1 Loans is not more than 50 basis pointsless than the All-in Yield for such tranche of Incremental Term Loans (this clause (iii), the “MFN Protection ”).(c)Each Incremental Revolving Commitment shall be part of the Total Revolving Commitment andall such Commitments and any Revolving Loans thereunder shall have terms and conditions that are identical tothose applicable to Revolving Commitments and Revolving Loans hereunder. In connection with any IncrementalRevolving Commitment, the outstanding Revolving Loans and Commitment Percentages of Swingline Loans and LCExposure will be reallocated by the Administrative Agent on the applicable Increase Effective Date among theRevolving Lenders (including the Incremental Lenders providing such Incremental Revolving Commitment) inaccordance with their revised Commitment Percentages (and the Revolving Lenders (including the IncrementalLenders providing such Incremental Revolving Commitments) agree to make all payments and adjustmentsnecessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant toSection 2.17 in connection with such reallocation as if such reallocation were a repayment).(d)Each Incremental Facility and the Loans made thereunder shall be deemed to be an Obligation andshall be secured on a pari passu basis with all other Obligations.(e)At the time of the sending of such notice, the Borrower (in consultation with the AdministrativeAgent) shall specify the date on which the Borrower proposes that any Incremental Facility shall be effective (whichshall be a date no less than ten (10) Business Days from the date of delivery of such notice to the AdministrativeAgent or such other date as agreed to by the Administrative Agent). The Borrower may invite any Lender, anyAffiliate or Approved Fund of any Lender and/or any other Person reasonably satisfactory to the AdministrativeAgent to provide an Incremental Facility. Any Person offered or approached to provide all or a portion of anyIncremental Facility may elect or decline, in its sole discretion, to provide such Incremental Facility (provided thatany Person not responding prior to the proposed effective date of the applicable Incremental Facility shall bedeemed to have declined to provide any portion of such Incremental Facility). Each Incremental Lender shallbecome a Lender or make its Commitment to the applicable Incremental Facility available, as the case may be, underthis Agreement, pursuant to an amendment (an “Incremental Facility Amendment ”) to this Agreement giving effectto the modifications permitted by thisSection 2.21 and, as appropriate, the other Loan Documents, executed by theLoan Parties, each Incremental Lender (to the extent applicable), the Administrative Agent and (solely in the case ofan Incremental Lender providing Incremental Revolving Commitments and solely to the extent required for an-74-141683210_5 163765871_7 22-31184-1 C1.1 P96 |
(b)The Borrower and each Accepting Revolving Lender shall execute and deliver to theAdministrative Agent a Revolving Extension Agreement (which may take the form of an amendment and restatementof this Agreement so long as no modifications are made that would otherwise be prohibited bySection 9.02 withoutobtaining the vote of any other Class, Subfacility or other group of Lenders) and such other documentation as theAdministrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and theterms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness ofeach Revolving Extension Agreement. The Lenders hereby irrevocably authorize the Administrative Agent to enterinto technical amendments to this Agreement and the other Loan Documents as may be necessary or advisable toeffectuate the transactions contemplated by the Permitted Amendments (including amendments toSection 2.13 hereof if deemed advisable by the Administrative Agent, and any other amendments necessary to treat the RevolvingLoans and Revolving Commitments of the Accepting Revolving Lenders as Extended Revolving Loans and/orExtended Revolving Commitments, including, without limitation, to include appropriately the Accepting RevolvingLenders in any determination of Requisite Lenders and Requisite Revolving Lenders, and to incorporateappropriately any Extended Revolving Loans into the definition of Subfacility, the provisions ofArticle II or othersimilar provisions). Notwithstanding the foregoing, no Permitted Amendment shall become effective under thisSection 2.22 unless the Administrative Agent shall have received flood hazard certifications with respect to each realproperty location that is subject to a Mortgage and, for any such real property location that is in a flood zone,evidence of (i) flood insurance (with appropriate endorsements naming the Administrative Agent as mortgagee andlender loss payee), (ii) legal opinions, a certificate of an Authorized Officer, board resolutions and (iii) such othercorporate documents as the Administrative Agent may request, in each case in form and substance reasonablysatisfactory to the Administrative Agent. Any extension of the maturity date of the Revolving Commitments thatresults in an extension of an Issuing Bank’s obligations with respect to Letters of Credit shall require the consent ofsuch Issuing Bank.(c)The Borrower may, by written notice to the Administrative Agent from time to time, make one ormore offers (each, a “Term Loan Modification Offer ”) to all the Term B-1 Lenders and/or one or more Classes ofTerm Loans to make one or more Permitted Amendments pursuant to procedures specified by the AdministrativeAgent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of therequested Permitted Amendments and (ii) the date on which such Permitted Amendments are requested to becomeeffective (which shall not be less than 10 Business Days after the date of such notice, unless agreed to by theconsenting Lenders and the Administrative Agent). Permitted Amendments shall become effective only with respectto the Term Loans of the Lenders that accept the applicable Term Loan Modification Offer (such Lenders, the“Accepting Term Lenders ”).(d)The Borrower and each Accepting Term Lender shall execute and deliver to the AdministrativeAgent a Term Loan Modification Agreement (which may take the form of an amendment and restatement of thisagreement so long as no modifications are made that would otherwise be prohibited bySection 9.02 withoutobtaining the vote of any other Class, Subfacility or other group of Lenders) and such other documentation as theAdministrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and theterms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness ofeach Term Loan Modification Agreement. The Lenders hereby irrevocably authorize the Administrative Agent toenter into technical amendments to this Agreement and the other Loan Documents as may be necessary or advisableto effectuate the transactions contemplated by the Permitted Amendments (including amendments toSection 2.13 hereof if deemed advisable by the Administrative Agent, and any other amendments necessary to treat the TermLoans and of the Accepting Term Lenders as Extended Term Loans, including, without limitation, to includeappropriately the Accepting Term Lenders in any determination of Requisite Lenders, and to incorporateappropriately any Extended Term Loans into the definition of Subfacility, the provisions of Article II or other similarprovisions). Notwithstanding the foregoing, no Permitted Amendment shall become effective under thisSection 2.22 unless the Administrative Agent shall have received legal opinions, a certificate of an Authorized Officer, boardresolutions and such other corporate documents as the Administrative Agent may request, in each case in form andsubstance reasonably satisfactory to the Administrative Agent.(e)Notwithstanding the foregoing, the Administrative Agent shall have the right (but not theobligation) to seek the advice or concurrence of the Requisite Lenders, with respect to any matter contemplated bythisSection 2.22 and, if the Administrative Agent seeks such advice or concurrence, the Administrative Agent shall-76-141683210_5 163765871_7 22-31184-1 C1.1 P98 |
Parties or any of their respective Subsidiaries has any contingent liability with respect to post-retirement benefitsprovided under a Welfare Plan, other than (i) liability for continuation coverage described in Part 6 of Subtitle B ofTitle I of ERISA and (ii) liabilities that, individually or in the aggregate, would not reasonably be expected to have aMaterial Adverse Effect.Except as would not reasonably be expected to have a Material Adverse Effect, (a) each Foreign Plan hasbeen maintained in compliance with its terms and with the requirements of any and all Applicable Laws, statutes,rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatoryauthorities, and (b) none of the Loan Parties or any of their respective Subsidiaries has incurred any obligation inconnection with the termination of or withdrawal from any Foreign Plan.Section 3.13Environmental Warranties ..(a)Except as set forth onSchedule 3.13(a) , all facilities and property owned, leased or operated byHoldings or any of its Material Subsidiaries, and all operations conducted thereon, are in compliance with allEnvironmental Laws, except for such noncompliance that, individually or in the aggregate, would not reasonably beexpected to have a Material Adverse Effect.(b)Except as set forth on Schedule 3.13(b) , there are no pending or threatened (in writing):(i)Environmental Claims received by Holdings or any of its Material Subsidiaries, or(ii)written claims, complaints, notices or inquiries received by Holdings or any of itsMaterial Subsidiaries regarding Environmental Liability,in each case which, individually or in the aggregate, could reasonably be expected to have a Material AdverseEffect.(c)Except as set forth onSchedule 3.13(c) , there have been no Releases of Hazardous Materials at,on, under or from any property now or, to any Loan Party’s knowledge, previously owned, leased or operated byHoldings or any of its Material Subsidiaries that, individually or in the aggregate, have had or could reasonably beexpected to have a Material Adverse Effect.(d)Holdings and its Material Subsidiaries have been issued and are in compliance with allEnvironmental Permits necessary for their operations, facilities and businesses and each is in full force and effect,except for such Environmental Permits which, if not so obtained or as to which Holdings and its MaterialSubsidiaries are not in compliance, or are not in effect, individually or in the aggregate, would not reasonably beexpected to have a Material Adverse Effect.(e)Except as set forth onSchedule 3.13(e) , as of the date of this Agreement, to any Loan Party’sknowledge no property now or previously owned, leased or operated by Holdings or any of its Material Subsidiariesis listed or proposed (with respect to owned property only) for listing on the CERCLIS or on any similar state list ofsites requiring investigation or clean-up, or on the National Priorities List pursuant to CERCLA.(f)To any Loan Party’s knowledge, there are no underground storage tanks, active or abandoned,including petroleum storage tanks, surface impoundments or disposal areas, on or under any property now orpreviously owned or leased by Holdings or any of its Material Subsidiaries which, singly or in the aggregate, couldreasonably be expected to have a Material Adverse Effect.(g)As of the Closing Date, to any Loan Party’s knowledge neither Holdings nor any of its MaterialSubsidiaries has transported or arranged for the transportation of any Hazardous Material to any location which islisted or proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similarstate list or which is the subject of federal, state or local enforcement actions or other investigations which wouldreasonably be expected to lead to any Environmental Claim against Holdings or any of its Material Subsidiaries.-83-141683210_5 163765871_7 22-31184-1 C1.1 P105 |
reasonably detailed presentation, either on the face of the annual financial statements delivered pursuant tothis clause (a) or in the footnotes thereto, of the financial condition and results of operations of Holdingsand its Subsidiaries separate from the financial condition and results of operations of the UnrestrictedSubsidiaries;(b)as soon as available and in any event within 90 days (or such shorter period as may berequired for the filing of Holdings’ Form 10-K by the SEC) after the end of each Fiscal Year of Holdings,commencing with the Fiscal Year ending December 31, 2020, a copy of the annual audit report for suchFiscal Year for Holdings on a consolidated basis, including therein a consolidated balance sheet ofHoldings as of the end of such Fiscal Year and consolidated statements of earnings and cash flow ofHoldings for such Fiscal Year, in each case certified (without any Impermissible Qualification) by Ernst &Young LLP or other independent public accountants reasonably acceptable to the Administrative Agent,together with a certificate from a Financial Officer of the Borrower (a “Compliance Certificate ”) (i)containing a computation in reasonable detail of, and showing compliance with, the financial ratios andrestrictions contained in the Financial Covenant and computations of Available Cash and the CumulativeCredit and (ii) to the effect that, in making the examination necessary for the signing of such certificate,such Financial Officer has not become aware of any Default that has occurred and is continuing, or, if suchFinancial Officer has become aware of such Default, describing such Default and the steps, if any, beingtaken to cure it, and concurrently with the delivery of the foregoing financial statements, a certificate of theaccounting firm that reported on such financial statements stating whether they obtained knowledge duringthe course of their examination of such financial statements of any Default (which certificate may be limitedto the extent required by accounting rules or guidelines); provided, that if at the end of any applicable FiscalYear there are any Unrestricted Subsidiaries, the Borrower shall also furnish a reasonably detailedpresentation, either on the face of the annual financial statements delivered pursuant to this clause (b) or inthe footnotes thereto, of the financial condition and results of operations of Holdings and its Subsidiariesseparate from the financial condition and results of operations of the Unrestricted Subsidiaries;(c)as soon as available and in any event within 45 days (or such shorter period as may berequired for the filing of Holdings’ Form 10-Q by the SEC) after the end of each Fiscal Quarter referred toin clause (a) of this Section, a Compliance Certificate (i) containing a computation in reasonable detail of,and showing compliance with, the Financial Covenant and (ii) to the effect that, in making the examinationnecessary for the signing of such certificate, such Financial Officer has not become aware of any Defaultthat has occurred and is continuing, or, if such Financial Officer has become aware of such Default,describing such Default and the steps, if any, being taken to cure it;(d)no later than 10 days prior to the commencement of each Fiscal Year of Holdingsbeginning with the 2021 Fiscal Year, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year(including a projected combined balance sheet and related statements of projected operations and cash flowas of the end of and for each Fiscal Quarter during such Fiscal Year and a narrative description from aFinancial Officer describing such consolidated budget, in form satisfactory to the Administrative Agent)and the succeeding Fiscal Years through the Fiscal Year ending on or immediately after the Term LoanMaturity Date (including a projected combined balance sheet and related statements of projected operationsand cash flow as of the end of and for each Fiscal Quarter during such Fiscal Year) and, promptly whenavailable, any significant revisions of such budgets;(e)promptly upon receipt thereof, copies of all reports submitted to Holdings or any of itsSubsidiaries by independent certified public accountants in connection with each annual, interim or specialaudit of the books of Holdings or any of its Subsidiaries made by such accountants, including anymanagement letters submitted by such accountants to management in connection with their annual audit, ineach case, to the extent such accountants have consented thereto;(f)as soon as possible and in any event within three Business Days after becoming aware ofthe occurrence of any Default, a statement of a Financial Officer of the Borrower setting forth details ofsuch Default and the action which the Borrower has taken and proposes to take with respect thereto;-90-141683210_5 163765871_7 22-31184-1 C1.1 P112 |
(g)as soon as possible and in any event within five Business Days after (i) the occurrence ofany adverse development with respect to any litigation, action or proceeding that, individually or in theaggregate, would reasonably be expected to have a Material Adverse Effect or (ii) the commencement ofany litigation, action or proceeding that would reasonably be expected to have a Material Adverse Effect orthat purports to affect the legality, validity or enforceability of this Agreement or any other Loan Documentor the transactions contemplated hereby or thereby, notice thereof and copies of all documentation relatingthereto;(h)promptly after the sending or filing thereof, copies of all reports which Holdings sends toany of its security holders, and all reports, registration statements (other than on Form S-8 or any successorform) or other materials (including affidavits with respect to reports) which Holdings or any of itsSubsidiaries or any of its officers files with the SEC or any national securities exchange;(i)promptly upon becoming aware of the taking of any specific actions by the Loan Parties,their Subsidiaries or any other Person to terminate any Pension Plan (other than a termination pursuant toSection 4041(b) of ERISA which can be completed without the Loan Parties, their Subsidiaries or anyERISA Affiliate having to provide more than $1.0 million in addition to the normal contribution requiredfor the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of anERISA Event which could result in a Lien on the assets of any Loan Party or any of their respectiveSubsidiaries or in the incurrence by any Loan Party or any of their respective Subsidiaries of any liability,fine or penalty which could reasonably be expected to have a Material Adverse Effect, or any increase inthe contingent liability of any Loan Party or any of their respective Subsidiaries with respect to anypost-retirement Welfare Plan benefit if the increase in such contingent liability could reasonably beexpected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto;(j)upon request by the Administrative Agent, copies of: (i) each Schedule B (ActuarialInformation) to the annual report (Form 5500 Series) filed by any Loan Party or any of their respectiveSubsidiaries or ERISA Affiliates with the IRS with respect to each Pension Plan; (ii) the most recentactuarial valuation report for each Pension Plan; (iii) all notices received by any Loan Party or any of theirrespective Subsidiaries or ERISA Affiliates from a Multiemployer Plan sponsor or any governmentalagency concerning an ERISA Event; and (iv) such other documents or governmental reports or filingsrelating to any Plan as the Administrative Agent shall reasonably request;(k)as soon as possible, notice of any other development that could reasonably be expected tohave a Material Adverse Effect;(l)simultaneously with the delivery of financial statements pursuant toSections 5.01(a) and(b) , certifications by the chief executive officer and the chief financial officer or others under the ExchangeAct, the Xxxxxxxx-Xxxxx Act of 2002, as amended, and/or the rules and regulations of the SEC, without anyexceptions or qualifications; and(m)such other information respecting the condition or operations, financial or otherwise, ofany Loan Party or any of their respective Subsidiaries as any Lender through the Administrative Agent mayfrom time to time reasonably request (including, without limitation any information and documentationrequired by bank regulatory authorities under applicable “Know Your Customer” rules and regulations, thePATRIOT Act and the Beneficial Ownership Regulation).Documents required to be delivered pursuant toSection 5.01(a) or(b) orSection 5.01(h) (to the extent anysuch documents are included in materials otherwise filed with the SEC) may be delivered electronically and if sodelivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, orprovides a link thereto on the Borrower’s website on the Internet at the website address listed inSection 9.01 ; or (ii)on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to whicheach Lender and the Administrative Agent have access (whether a commercial, third-party website or whethersponsored by the Administrative Agent);provided that: (i) the Borrower shall deliver paper copies of suchdocuments to the Administrative Agent or any Lender that requests in writing that the Borrower deliver such paper-91-141683210_5 163765871_7 22-31184-1 C1.1 P113 |
(iv)(A) Indebtedness (I) secured by the Collateral on apari passu basis with the Obligations(“Incremental Equivalent First Lien Debt ”), (II) secured by the Collateral on a junior lien basis with theTerm B-1 Loans and the Revolving Facility (“Incremental Equivalent Junior Lien Debt ”), (III) securedsolely by assets that are not Collateral (“Incremental Equivalent Non-Collateral Debt ”) or (IV) that isunsecured (“Incremental Equivalent Unsecured Debt ” and, together with Incremental Equivalent First LienDebt, Incremental Equivalent Junior Lien Debt and Incremental Equivalent Non-Collateral Debt,“Incremental Equivalent Debt ”), in an aggregate principal amount under this clause (iv), together with theaggregate amount of all Incremental Facilities, not to exceed the Available Incremental Amount (calculatedassuming that all Indebtedness incurred pursuant to this clause (iv) is secured Indebtedness for so long as itis outstanding (whether or not such Indebtedness is in fact so secured));provided that immediately prior toand immediately after giving pro forma effect thereto and to the use of the proceeds thereof (but withoutnetting the proceeds thereof): (1) there exists no Event of Default or Event of Termination; (2) suchIndebtedness shall (x) in the case of Incremental Equivalent First Lien Debt, have a maturity date that isafter the Latest Maturity Date at the time such Indebtedness is incurred and (y) in the case of IncrementalEquivalent Junior Lien Debt, Incremental Equivalent Non-Collateral Debt and Incremental EquivalentUnsecured Debt, have a maturity date that is at least ninety-one (91) days after the Latest Maturity Date atthe time such Indebtedness is incurred;provided that the foregoing requirements of this clause (2) shall notapply to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-termIndebtedness into which such customary bridge facility is to be converted or exchanged satisfies therequirements of this clause (2) and such conversion or exchange is subject only to conditions customary forsimilar conversions or exchanges; (3) such Indebtedness shall not have a have a Weighted Average Life toMaturity shorter than the longest remaining Weighted Average Life to Maturity of any then existing trancheof Term Loans;provided ,that the foregoing requirements of this clause (3) shall not apply to the extentsuch Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into whichsuch customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (3)and such conversion or exchange is subject only to conditions customary for similar conversions orexchanges; (4) in the case of Incremental Equivalent Junior Lien Debt, the Other Debt Representative forsuch Indebtedness shall be subject to a Junior Lien Intercreditor Agreement and, in the case of IncrementalEquivalent First Lien Debt, the Other Debt Representative for such Indebtedness shall be subject to a FirstLien Intercreditor Agreement; (5) after giving effect to the incurrence of any Incremental Equivalent Debtand the use of proceeds therefrom, the Borrower would be inpro forma compliance with the FinancialCovenant (whether or not then in effect) as of the most recent date for which financial statements have beendelivered pursuant toSection 5.01 ; (6) in the case of Incremental Equivalent First Lien Debt in the form ofsyndicated term loans, such Indebtedness shall be subject to MFN Protection as if such Indebtedness werean Incremental Term Loan and (7) any Indebtedness assumed or incurred by Subsidiaries that are not LoanParties pursuant to this clause (iv), together with any Indebtedness incurred by Subsidiaries that are notLoan Parties pursuant toSections 6.01(a)(iii) ,6.01(a)(xx) and6.01(a)(xxi) , does not exceed in theaggregate at any time outstanding the greater of (1) $250.0 million and (2) 7.5% of Total Assets(determined at the time such Indebtedness is assumed or incurred) and (B) any Permitted Refinancingthereof;(v)(x) Indebtedness existing on the Closing Date and set forth onSchedule 6.01(a)(v) and(y) any Permitted Refinancing thereof;(vi)Indebtedness owed by Holdings, Borrower or any Subsidiary to Holdings, the Borroweror any Subsidiary as a result of any Investment permitted underSection 6.04(iii) ;provided that suchIndebtedness is represented by a note and is pledged to the Administrative Agent pursuant to, and to theextent required by, the Security Documents;(vii)Guarantees by Holdings, the Borrower or any Subsidiary Loan Party of Indebtedness ofHoldings or any Subsidiary Loan Party, in each case, to the extent such Indebtedness would have beenpermitted to be incurred hereunder directly by such Loan Party and, if such Indebtedness is subordinated inright of payment to the Obligations under the Loan Documents, such Guarantee is as subordinated in rightof payment to the Obligations on the same terms;-99-141683210_5 163765871_7 22-31184-1 C1.1 P121 |
(viii)Indebtedness arising from the honoring by a bank or other financial institution of a check,draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided thatsuch Indebtedness is extinguished within two Business Days of such Loan Party or such Subsidiaryreceiving notice thereof;(ix) (x) Indebtedness of any Loan Party in an aggregate outstanding principal amount not inexcess of the greater of (A) $200.0 million and (B) 6.0% of Total Assets (determined at the time suchIndebtedness is incurred or issued and (y) any Permitted Refinancing thereof (it is acknowledged andagreed that this clause may be used to incur secured Incremental Facilities pursuant to, and in accordancewith, Section 2.21(g) );(x)[reserved];(xi)(x) Indebtedness incurred to finance the acquisition, construction or improvement of anyassets, including Capital Lease Obligations and any Indebtedness assumed in connection with theacquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, andextensions, renewals and replacements of any such Indebtedness that do not increase the outstandingprincipal amount thereof or result in an earlier maturity date or decreased Weighted Average Life toMaturity thereof;provided that (A) such Indebtedness is incurred prior to or within 180 days after suchacquisition or the completion of such construction or improvement, (B) no Default shall have occurred orbe continuing or would result therefrom, both immediately prior to and immediately after giving effectthereto, and (C) the aggregate outstanding principal amount of Indebtedness permitted by this clause (xi)shall not exceed the greater of (1) $50.0 million and (2) 2% of Total Assets (determined at the time suchIndebtedness is incurred or issued) and (y) any Permitted Refinancing thereof;(xii)Indebtedness under Hedging Agreements entered into in the ordinary course of businessand not for speculative purposes;(xiii)Indebtedness owed to (including obligations in respect of letters of credit for the benefitof) any Person providing worker’s compensation, health, disability or other employee benefits or property,casualty or liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or indemnificationobligations to such Person;(xiv)Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds,completion guarantees and similar obligations and trade-related letters of credit, in each case provided inthe ordinary course of business, including those incurred to secure health, safety and environmentalobligations in the ordinary course of business;(xv)Indebtedness arising from agreements providing for indemnification, adjustment ofpurchase price or similar obligations, in each case, incurred or assumed in connection with the dispositionof any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Personacquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing suchacquisition;(xvi)obligations arising from or representing deferred compensation to employees ofHoldings, the Borrower or any Subsidiary that constitute or are deemed to be Indebtedness under GAAPand that are incurred in the ordinary course of business;(xvii)[reserved];(xviii)[reserved];(xix)(x) Indebtedness of the Loan Parties assumed in one or more Permitted Acquisitions in anaggregate principal amount not to exceed $25.0 million outstanding at any time to the extent suchIndebtedness was not incurred in connection with or in contemplation of such Permitted Acquisition and (y)-100-141683210_5 163765871_7 22-31184-1 C1.1 P122 |
amounts not overdue by more than 10 days or being contested in good faith by appropriate proceedingspromptly instituted and diligently conducted;provided that (A) a reserve or other appropriate provision, ifany, as is required by GAAP shall have been made therefor, (B) if such Lien is on Collateral and suchamounts are being contested, the Contested Collateral Lien Conditions shall at all times be satisfied and (C)such Liens relating to statutory obligations, surety or appeal bonds or performance bonds shall only extendto or cover cash and cash equivalents;(iv)Liens existing on the Closing Date and set forth on Schedule 6.02(iv) ;(v)Liens for Taxes, assessments or governmental charges or claims or other like statutoryLiens, in any case incurred in the ordinary course of business, that do not secure Indebtedness for borrowedmoney and (A) that are not yet due and payable or (B) that are being contested in good faith by appropriateproceedings promptly instituted and diligently conducted; provided that (1) any reserve or other appropriateprovision as shall be required in accordance with GAAP shall have been made therefor and (2) if such Lienis on Collateral and such amounts are being contested, the Contested Collateral Lien Conditions shall at alltimes be satisfied;(vi)Liens to secure Indebtedness (including Capital Lease Obligations) of the type describedinSection 6.01(a)(xi) covering only the assets acquired, financed, refinanced or improved with suchIndebtedness;(vii)Liens securing Indebtedness incurred to refinance Indebtedness secured by the Liens ofthe type described in clause (ii) of thisSection 6.02 ;provided that any such Lien shall not extend to orcover any assets not securing the Indebtedness so refinanced;(viii)(A) Liens in the form of zoning restrictions, easements, licenses, reservations, covenants,conditions or other restrictions on the use of real property or other minor irregularities in title (includingleasehold title) that do not (1) secure Indebtedness or (2) individually or in the aggregate materially impairthe value or marketability of the real property affected thereby or the occupation, use and enjoyment in theordinary course of business of Holdings or any Subsidiary at such real property and (B) with respect toleasehold interests in real property, mortgages, obligations, liens and other encumbrances incurred, created,assumed or permitted to exist and arising by, through or under a landlord or owner of such leased propertyencumbering the landlord’s or owner’s interest in such leased property;(ix)Liens in the form of pledges or deposits securing bids, tenders, contracts (other thancontracts for the payment of money) or leases to which Holdings or any of its Subsidiaries is a party, ineach case, made in the ordinary course of business for amounts (A) not yet due and payable or (B) beingcontested in good faith by appropriate proceedings promptly instituted and diligently conducted;providedthat (1) a reserve or other appropriate provision, if any, as is required by GAAP shall have been madetherefor, (2) if such Lien is on Collateral and such amounts are being contested, the Contested CollateralLien Conditions shall at all times be satisfied and (3) such Liens shall in no event encumber any Collateralother than cash and cash equivalents;(x)Liens resulting from operation of law with respect to any judgments, awards or orders tothe extent that such judgments, awards or orders do not cause or constitute a Default under this Agreement;provided that if any such Liens are on Collateral and such amounts are being contested, the ContestedCollateral Lien Conditions shall at all times be satisfied;(xi)Liens in the form of licenses, leases or subleases granted or created by Holdings, theBorrower or any of its Subsidiaries, which licenses, leases or subleases do not interfere, individually or inthe aggregate, in any material respect with the business of Holdings, the Borrower or such Subsidiary orindividually or in the aggregate materially impair the use (for its intended purpose) or the value of theproperty subject thereto;provided that any such Lien shall not extend to or cover any assets of any Personthat is not the subject of any such license, lease or sublease;-102-141683210_5 163765871_7 22-31184-1 C1.1 P124 |
(xii)Liens on fixtures or personal property held by or granted to landlords pursuant to leasesto the extent that such Liens are not yet due and payable;(xiii)[reserved];(xiv)CoBank’s statutory Lien on the Borrower’s Bank Equity Interests;(xv)Liens of a collecting bank arising in the ordinary course of business under Section 4-210of the Commercial Code in effect in the relevant jurisdiction and Liens of any depository bank inconnection with statutory, common law and contractual rights of setoff and recompense of any depositaccount of Holdings and its Subsidiaries;(xvi)Liens securing Indebtedness incurred in connection with any Permitted Acquisition orsimilar permitted Investment pursuant toSection 6.01(a)(iii) which such Indebtedness is incurred inreliance on a Consolidated Senior Secured Leverage Ratio test underSection 6.01(a)(iii) ;provided thatwith respect to any such Liens on Collateral that arepari passu with the Liens securing the Obligations, theapplicable Other Debt Representative for such Indebtedness shall be subject to a First Lien IntercreditorAgreement and, in the case of any such Liens on Collateral that are junior to the Liens securing theObligations, the applicable Other Debt Representative for such Indebtedness shall be subject to a JuniorLien Intercreditor Agreement;(xvii)to the extent constituting a Lien, Liens arising from precautionary UCC financingstatement or similar filings by operating lease lessors;(xviii)Liens on the assets of Subsidiaries that are not Loan Parties;provided, that such Lienssecure obligations of such Subsidiaries that are permitted hereunder;(xix)Liens on assets that do not constitute Collateral;provided, that such Liens secureobligations that are permitted hereunder;(xx)Liens on the Collateral;provided that (i) immediately after giving pro forma effect to theincurrence or assumption thereof (and the other transactions consummated concurrently therewith) theConsolidated Senior Secured Leverage Ratio calculated on a pro forma basis is no greater than 3.70 to 1.00calculated on a pro forma basis and (ii) in the case of any such Liens on Collateral that arepari passu withthe Liens securing the Obligations, the applicable Other Debt Representative for such Indebtedness shall besubject to a First Lien Intercreditor Agreement and, in the case of any such Liens on Collateral that arejunior to the Liens securing the Obligations, the applicable Other Debt Representative for suchIndebtedness shall be subject to a Junior Lien Intercreditor Agreement;(xxi)Liens securing obligations under the Senior Secured Notes Indenture and the other SeniorSecured Notes Documents incurred pursuant toSection 6.01(a)(ii) ; provided that the collateral agent underthe Senior Secured Notes Documents (or other applicable representative thereof on behalf of the holders ofsuch Indebtedness) shall have entered into with the Administrative Agent the First Lien IntercreditorAgreement;(xxii)other Liens securing Indebtedness in an aggregate amount at any time outstanding not toexceed the greater of (I) $200.0 million and (II) 6.0% of Total Assets (determined at the time such Lien isincurred or assumed);(xxiii)Liens to secure any Indebtedness issued or incurred as a Permitted Refinancing of anyIndebtedness secured by any Lien permitted by thisSection 6.02 ; provided that such Liens do not extend toany property or assets other than the property or assets that secure the Indebtedness being refinanced; and(xxiv)Liens securing obligations in respect of Sale and Leaseback Transactions; provided, thatsuch Liens do not apply to any property or assets of Holdings or any Subsidiary other than the property or-103-141683210_5 163765871_7 22-31184-1 C1.1 P125 |
Section 6.04Investments, Loans, Advances, Guarantees and Acquisitions .. The Loan Parties will notand will permit any of their Subsidiaries to, directly or indirectly, purchase or acquire (including pursuant to anymerger with any Person that was not a Wholly Owned Subsidiary prior to such merger) any Equity Interests in orevidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of theforegoing) of, make any loans or advances to, Guarantee any obligations of, or make any investment or any otherinterest in, any other Person, or make upfront payments or provide other credit support for any Person or purchase orotherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting abusiness unit (each of the foregoing, an “Investment ” and collectively, “Investments ”), except:(i)Cash Equivalents;(ii)Investments existing on the Closing Date (or in respect of which a binding commitment tomake such investment existed on the Closing Date of this Agreement) and set forth on Schedule 6.04(ii) ;(iii)Investments (x) by Loan Parties or any of their Subsidiaries in Subsidiary Loan Parties,the Borrower or Holdings, (y) by Subsidiaries that are not Loan Parties in other Subsidiaries that are notLoan Parties and (z) by Loan Parties in Subsidiaries that are not Loan Parties;provided, that in the case ofthis clause (z) the amount of such Investments at any time outstanding shall not exceed $150.0 million;provided,further, that any Investment held by a Loan Party pursuant to this clause (iii) shall be pledgedpursuant to, and to the extent required by, the Security Documents;(iv)Investments constituting Indebtedness permitted by Sections 6.01(a)(xii) ;(v)Guarantees constituting Indebtedness permitted by Section 6.01(a)(vii) ;(vi)Investments received in connection with the bankruptcy or reorganization of, orsettlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinarycourse of business;(vii)loans and advances to employees of Holdings and its Subsidiaries in the ordinary courseof business or consistent with past practice (including, without limitation, for travel, entertainment andrelocation expenses) not to exceed $5.0 million in the aggregate at any time outstanding;(viii)so long as no Default shall have occurred or be continuing or would result therefrom,both immediately prior to and immediately after giving effect thereto, other Investments having anaggregate Fair Market Value (at the time made and without giving effect to subsequent changes in value),taken together with all other loans, advances or investments made pursuant to this clause (viii) thenoutstanding that is not in excess of the greater of (A) $150.0 million and (B) 4.5% of Total Assets;(ix)Investments received in connection with Dispositions permitted underSection 6.03(b) and Section 6.05 ;(x)accounts receivable of a Loan Party or any Subsidiary established in the ordinary courseof business;(xi)Investments out of Available Proceeds;(xii)Permitted Acquisitions;(xiii)Investments in Bank Equity Interests;(xiv)Investments in an amount not to exceed the Cumulative Credit at the time any suchInvestment is made;(xv)Investments resulting from Restricted Payments permitted by Section 6.07 ; and-105-141683210_5 163765871_7 22-31184-1 C1.1 P127 |
(c)The Borrower shall default in the due performance and observance of any of itsobligations under clause (f), (g), (i) or (k) ofSection 5.01 or any Loan Party or any of their Subsidiariesshall fail to comply with clause (a) ofSection 5.02 ,Section 5.17 orArticle VI ;provided, thatnotwithstanding this clause (c), no breach or default by the Borrower underSection 6.11 will constitute anEvent of Default with respect to any Term Loans or Credit Agreement Refinancing Indebtedness (unlessconsisting of revolving credit facilities) unless and until the Requisite Revolving Lenders have acceleratedthe Revolving Loans, terminated the Revolving Commitments and demanded repayment of, or otherwiseaccelerated, the Indebtedness or other obligations in respect of the Revolving Commitments; it beingunderstood and agreed that any breach of Section 6.11 is subject to cure as provided in Section 7.02 ..(d)Any Loan Party shall default in the due performance and observance of any agreement(other than those specified in paragraphs (a) through (c) above) contained herein or in any other LoanDocument, and such default shall continue unremedied for a period of 30 days after the date written noticeof such default is delivered by the Administrative Agent to the Borrower or by any Loan Party to theAdministrative Agent pursuant to Section 5.01(f) ..(e)A default shall occur (i) in the payment when due (subject to any applicable graceperiod), whether by acceleration or otherwise, of any Material Indebtedness or (ii) in the performance orobservance of any obligation or condition with respect to any Material Indebtedness if the effect of suchdefault referred to in this clause (ii) is to accelerate the maturity of any such Material Indebtedness or thatenables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders ofany such Material Indebtedness or any trustee or agent on its or their behalf to cause any such MaterialIndebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof,prior to its scheduled maturity.(f)Any judgment or order (or combination of judgments and orders) for the payment ofmoney equal to or in excess of $50.0 million individually or in the aggregate shall be rendered againstHoldings or any of its Subsidiaries (or any combination thereof) and(i)enforcement proceedings shall have been commenced by any creditor upon suchjudgment or order and not stayed;(ii)such judgment has not been stayed, vacated or discharged within 60 days ofentry; or(iii)there shall be any period (after any applicable statutory grace period) of 10consecutive days during which a stay of enforcement of such judgment or order, by reason of apending appeal or otherwise, shall not be in effect and such judgment is not fully insured againstby a policy or policies of insurance (with reasonable or standard deductible provisions) issued byan insurer other than an Affiliate of the Borrower.(g)Any of the following events shall occur:(i)the taking of any specific actions by a Loan Party, any ERISA Affiliate or anyother Person to terminate a Pension Plan if, as a result of such termination, a Loan Party or anyERISA Affiliate could expect to incur a liability or obligation to such Pension Plan which couldreasonably be expected to have a Material Adverse Effect; or(ii)an ERISA Event, or termination, withdrawal or noncompliance with ApplicableLaw or plan terms with respect to Foreign Plans, shall have occurred that gives rise to a Lien onthe assets of any Loan Party or a Subsidiary or, when taken together with all other ERISA Eventsand terminations, withdrawals and noncompliance with respect to Foreign Plans that haveoccurred, could reasonably be expected to have a Material Adverse Effect.(h)Any Change in Control shall occur.-112-141683210_5 163765871_7 22-31184-1 C1.1 P134 |
Borrower and such Person, remove such Person as Administrative Agent and, in consultation with the Borrower,appoint a successor. If no such successor shall have been so appointed by the Requisite Lenders and shall haveaccepted such appointment within 30 days (or such earlier day as shall be agreed by the Requisite Lenders) (the“Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice onthe Removal Effective Date.(c)With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), ifthe Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted suchappointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) theretiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and underthe other Loan Documents (except that in the case of any collateral security held by the Administrative Agent onbehalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed AdministrativeAgent shall continue to hold such collateral security until such time as a successor Administrative Agent isappointed) and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, allpayments, communications and determinations provided to be made by, to or through the Administrative Agent shallinstead be made by or to each Lender and each Issuing Bank directly, until such time as the Requisite Lendersappoint a successor Administrative Agent as provided for above in this section. Upon the acceptance of asuccessor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vestedwith all of the rights, powers, privileges and duties of the retiring (or retired) or removed Administrative Agent, andthe retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder orunder the other Loan Documents (if not already discharged therefrom as provided above in this section). The feespayable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessorunless otherwise agreed between the Borrower and such successor. After the retiring or removed AdministrativeAgent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article andSection 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agentsand their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while theretiring or removed Administrative Agent was acting as Administrative Agent.(d)Any resignation by, or removal of, Xxxxx Fargo as Administrative Agent pursuant to this Sectionshall also constitute its resignation as an Issuing Bank and the Swingline Lender. Upon the acceptance of asuccessor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vestedwith all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (ii) theretiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligationshereunder or under the other Loan Documents, and (iii) the successor Issuing Bank shall issue letters of credit insubstitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangementssatisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank withrespect to such Letters of Credit.Section 8.07Non-Reliance on Administrative Agent and Other Lenders .. Each Lender and eachIssuing Bank expressly acknowledges that none of the Administrative Agent, any Arranger or any of their respectiveRelated Parties has made any representations or warranties to it and that no act taken or failure to act by theAdministrative Agent, any Arranger or any of their respective Related Parties, including any consent to, andacceptance of any assignment or review of the affairs of Holdings, the Borrower and their Subsidiaries or Affiliatesshall be deemed to constitute a representation or warranty of the Administrative Agent, any Arranger or any of theirrespective Related Parties to any Lender, any Issuing Bank or any other Secured Party as to any matter, includingwhether the Administrative Agent, any Arranger or any of their respective Related Parties have disclosed materialinformation in their (or their respective Related Parties’) possession. Each Lender and each Issuing Bank expresslyacknowledges, represents and warrants to the Administrative Agent and each Arranger that (a) the Loan Documentsset forth the terms of a commercial lending facility, (b) it is engaged in making, acquiring, purchasing or holdingcommercial loans in the ordinary course and is entering into this Agreement and the other Loan Documents to whichit is a party as a Lender for the purpose of making, acquiring, purchasing and/or holding the commercial loans setforth herein as may be applicable to it, and not for the purpose of making, acquiring, purchasing or holding anyother type of financial instrument, (c) it is sophisticated with respect to decisions to make, acquire, purchase or holdthe commercial loans applicable to it and either it or the Person exercising discretion in making its decisions tomake, acquire, purchase or hold such commercial loans is experienced in making, acquiring, purchasing or holding-119-141683210_5 163765871_7 22-31184-1 C1.1 P141 |
the expiration or termination of all Letters of Credit or (iv) subject toSection 9.02 , if approved, authorizedor ratified in writing by the Requisite Lenders;provided that notwithstanding anything herein or any other Loan Document to the contrary, with respect toSection 8.09(a) and8.09(c) , any such release shall be automatic, without further action of the Administrative Agent,the Collateral Agent or any other Person.Promptly following written request by Xxxxxxxx, and, if requested by the Administrative Agent or theCollateral Agent, delivery of a certification of the Borrower that one or more of the clauses underSection 8.09(a) ,(b) or(c) applies (and the Administrative Agent or the Collateral Agent, as applicable, may conclusively rely onsuch certification without further inquiry), the Administrative Agent and the Collateral Agent shall (and are herebyirrevocably authorized and directed by Xxxxxxx to) execute such documents as may be necessary to evidence therelease (or subordination) of its Liens upon such Collateral and the release of obligations under the GuaranteeAgreement, the Security Documents and any other Loan Documents, as contemplated by this Section 8.09 ..Upon request by the Administrative Agent at any time, the Requisite Lenders will confirm in writing theAdministrative Agent’s authority to release or subordinate its interest in particular types or items of property, or torelease any Subsidiary Loan Party from its obligations under the Guaranty Agreement, the Security Documents andthe other Loan Documents pursuant to this Section.Section 8.10Secured Hedging Agreements and Secured Cash Management Agreements .. No CashManagement Bank or Secured Hedging Provider that obtains the benefits ofSection 7.05 or any Collateral by virtueof the provisions hereof or of any Security Document shall have any right to notice of any action or to consent to,direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral(including the release or impairment of any Collateral) other than in its capacity as the Administrative Agent or aLender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any otherprovision of this Article VIII to the contrary, the Administrative Agent shall not be required to verify the payment of,or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or HedgingObligations unless the Administrative Agent has received written notice of such Cash Management Obligations andHedging Obligations, together with such supporting documentation as the Administrative Agent may request, fromthe applicable Cash Management Bank or Secured Hedging Provider, as the case may be.Section 8.11Withholding Taxes .. To the extent required by any Applicable Law, the AdministrativeAgent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Ifthe IRS or any other Governmental Authority of the United States or any other jurisdiction asserts a claim that theAdministrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for anyreason (including because the appropriate form was not delivered, was not properly executed, or because suchLender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, orreduction of, withholding Tax ineffective), such Lender shall indemnify the Administrative Agent (to the extent thatthe Administrative Agent has not already been reimbursed by any applicable Loan Party and without limiting theobligation of any applicable Loan Party to do so) fully for all amounts paid, directly or indirectly, by theAdministrative Agent as Tax, together with all expenses incurred, including legal expenses, allocated staff costs andany out of pocket expenses. In addition but without duplication, each Lender shall severally indemnify theAdministrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to suchLender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for suchIndemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable tosuch Lender’s failure to comply with the provisions ofSection 9.10(d) relating to the maintenance of a ParticipantRegister and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by theAdministrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom orwith respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority. A certificate as to the amount of such payment or liability described in thisSection 8.11 delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender herebyauthorizes the Administrative Agent to set off and apply all amounts at any time owing to such Lender under thisAgreement or any other Loan Document against any amount due to the Administrative Agent under thisSection 8.11 .. The agreements in thisSection 8.11 shall survive the resignation and/or replacement of the Administrative-121-141683210_5 163765871_7 22-31184-1 C1.1 P143 |
ARTICLE IXMISCELLANEOUSSection 9.01Notices ..(a)Notices Generally .. Except in the case of notices and other communications expressly permitted tobe given by telephone (and except as provided in paragraph (b) below), all notices and other communicationsprovided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed bycertified or registered mail or sent by telecopier as follows:If to the Borrower: 000 Xxxxx 00xx XxxxxxXxxxxxx, Xxxxxxxx 61938Attention: Xxxxx XxxxxxxxXxxxxxxx No.: (217) 234-9934E-mail: xxxxx.xxxxxxxx@xxxxxxxxxxxx.xxx With copies to:Xxxxxx Xxxxxx LLP6600 Sears Tower233 South Xxxxxx DriveChicago, Illinois 60606-6473Attention of: Xxxxxxxxx XxxxxXxxxxxxx No.: (312) 258-5600E-mail: xxxxxx@xxxxxxxxxxxx.xxx If to Xxxxx Fargo asAdministrative Agentor in its capacity asIssuing Bank:Xxxxx Fargo Bank, National AssociationMAC D1109-0191525 West X.X. Xxxxxx Blvd.Charlotte, NC 28262Attention of: Syndication Agency ServicesTelephone No.: (704) 590-2706Facsimile No.: (844) 879-5899With copies to:Xxxxx Fargo Bank, National Association550 Xxxxx Xxxxx Xx., 0xx XxxxxXxxxxxxxx, NC 28202Attention of: Xxxx XxxxxxxxxXxxxxxxxx No.: (704) 715-4742Email: xxxx.x.xxxxxxxxx@xxxxxxxxxx.xxxXx to any Lender:To the address set forth on the RegisterNotices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemedto have been given when received; notices sent by telecopier shall be deemed to have been given when sent (exceptthat, if not given during normal business hours for the recipient, shall be deemed to have been given at the openingof business on the next business day for the recipient). Notices delivered through electronic communications to theextent provided in paragraph (b) below shall be effective as provided in said paragraph (b).(b)Electronic Communications .. Notices and other communications to the Lenders and the IssuingBanks hereunder may be delivered or furnished by electronic communication (including e-mail and Internet orintranet websites) pursuant to procedures approved by the Administrative Agent,provided that the foregoing shall-123-141683210_5 163765871_7 22-31184-1 C1.1 P145 |
Section 9.02Amendments, Waivers and Consents .. Except as set forth below or as specificallyprovided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the otherLoan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if,such amendment, waiver or consent is in writing signed by the Requisite Lenders (or by the Administrative Agentwith the consent of the Requisite Lenders) and delivered to the Administrative Agent and, in the case of anamendment, signed by the Borrower; provided, that no amendment, waiver or consent shall:(a)[reserved];(b)[reserved];(c)amend, modify or waiveSection 4.02 or any other provision of this Agreement if theeffect of such amendment, modification or waiver is to require the Revolving Lenders to make RevolvingLoans when such Revolving Lenders would not otherwise be required to do so without the prior writtenconsent of the Requisite Revolving Lenders;(d)extend or increase the Revolving Commitment of any Lender (or reinstate any RevolvingCommitment terminated pursuant toSection 7.03 ,7.04 ,7.05 or7.06 ) or increase the amount of Loans ofany Lender without the written consent of such Lender;(e)postpone any date fixed by this Agreement or any other Loan Document for any payment(excluding prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them)hereunder or under any other Loan Document without the written consent of each Lender directly affectedthereby;(f)reduce the principal of, or the rate of interest specified herein on, any Loan orreimbursement obligation (pursuant toSection 2.06(e) ), or (subject to clause (iv) of the second proviso tothis Section) any fees or other amounts payable hereunder or under any other Loan Document without thewritten consent of each Lender directly affected thereby;provided that only the consent of the RequisiteLenders shall be necessary to waive any obligation of the Borrower to pay interest at the rate set forth inSection 2.08(c) during the continuance of an Event of Default;(g)change Section 2.13 or 7.07 in a manner that would alter the pro rata sharing of paymentsrequired thereby without the written consent of each Lender directly affected thereby;(h)changeSections 2.05(d) or2.13(c) in a manner that would alter the order of applicationof amounts prepaid pursuant thereto without the written consent of each Lender directly affected thereby;(i)amend or otherwise modifySection 6.11 (or, solely for the purposes of determiningcompliance with Section 6.11 , the definition of “Consolidated First Lien Leverage Ratio” or any componentdefinition thereof), (y) waive or consent to any Default or Event of Default resulting from a breach ofSection 6.11 or (z) alter the rights or remedies of the Requisite Revolving Lenders arising pursuant toArticle VII as a result of a breach ofSection 6.11 without the written consent of the Requisite RevolvingLenders;provided,however, that the amendments, modifications, waivers and consents described in thisclause (v i ) shall not require the consent of any Lenders other than the Requisite Revolving Lenders; (j)change any provision of this Section or the definition of “Requisite Lenders” or“Requisite Revolving Lenders” (except as otherwise provided inSections 2.21 or2.22 ) or any otherprovision hereof specifying the number or percentage of Lenders required to amend, waive or otherwisemodify any rights hereunder or make any determination or grant any consent hereunder, without the writtenconsent of each Lender directly affected thereby;(k)release all of the guarantors or release guarantors comprising substantially all of the creditsupport for the Obligations, in either case, from the Guaranty Agreement (other than as authorized inSection 8.09 ), without the written consent of each Lender; or-125-141683210_5 163765871_7 22-31184-1 C1.1 P147 |
(l)release all or substantially all of the Collateral (other than as authorized in Section 8.09 oras otherwise specifically permitted or contemplated in this Agreement or the applicable Security Document)without the written consent of each Lender;provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by each affectedIssuing Bank in addition to the Lenders required above, affect the rights or duties of such Issuing Bank under thisAgreement or any letter of credit application relating to any Letter of Credit issued or to be issued by it; (ii) noamendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lendersrequired above, affect the rights or duties of the Swingline Lender under this Agreement or any other LoanDocument; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent inaddition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreementor any other Loan Document; (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in awriting executed only by the parties thereto, and (v) the Administrative Agent and the Borrower shall be permitted toamend any provision of the Loan Documents (and such amendment shall become effective without any further actionor consent of any other party to any Loan Document) if the Administrative Agent and the Borrower shall have jointlyidentified an obvious error or any error, ambiguity, defect or inconsistency or omission of a technical or immaterialnature in any such provision. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have anyright to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the RevolvingCommitment of such Lender may not be increased or extended without the consent of such Lender and (y) anywaiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its termsaffects any Defaulting Lender more adversely than other affected Lenders shall require the consent of suchDefaulting Lender.Without the consent of any Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (intheir respective sole discretion, or shall, to the extent required by any Loan Document) (i) enter into any amendment,modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting,perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property tobecome Collateral for the benefit of the Secured Parties, to include holders of other Indebtedness in the benefit ofthe Security Documents in connection with the incurrence of any such Indebtedness permitted hereunder to sobenefit, or as required by local law to give effect to, or protect any security interest for the benefit of the SecuredParties, in any property or so that the security interests therein comply with applicable law or this Agreement or ineach case to otherwise enhance the rights or benefits of any Lender under any Loan Document, and (ii) enter into,amend, modify or supplement the First Lien Intercreditor Agreement or any Junior Lien Intercreditor Agreement.Notwithstanding anything to the contrary in this Agreement, this Agreement may be amended as providedin Section 2.12 without the consent of any Xxxxxx.Xx addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amendedwith the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevantReplacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class(the “Refinanced Term Loans ”) with a replacement term loan tranche hereunder (the “Replacement Term Loans ”);provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the thenoutstanding aggregate principal amount of the Refinanced Term Loans, (b) the weighted average interest margin forsuch Replacement Term Loans shall not be higher than the weighted average interest rate margin for suchRefinanced Term Loans (in each case as reasonably determined by the Administrative Agent in accordance withcustomary financial practice), (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall notbe shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of suchrefinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, orless favorable to the Lenders providing such Replacement Term Loans than, those applicable to such RefinancedTerm Loans in effect immediately prior to such refinancing. Any refinancing of any Class of Term Loans asdescribed above shall be subject to the prepayment provisions of Section 2.05 ..Notwithstanding anything to the contrary herein, in connection with any determination as to whether therequisite Lenders have directed or required the Administrative Agent to exercise any rights or remedies under ArticleVII (or under any other Loan Document), any Lender (other than (x) any Lender that is a Regulated Bank, (y) any-126-141683210_5 163765871_7 22-31184-1 C1.1 P148 |
syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery andadministration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of theprovisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),(ii) all reasonable out of pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment,renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out ofpocket expenses incurred by any Arranger, the Administrative Agent, any Lender or any Issuing Bank (including thereasonable fees, charges and disbursements of a single counsel selected by the Administrative Agent to theArrangers, the Administrative Agent, the Lenders and the Issuing Banks (taken as a whole) and to the extentreasonably determined by the Arrangers, the Administrative Agent, the Lenders and such Issuing Banks (taken as awhole), as applicable, to be necessary, one local counsel selected by the Administrative Agent to the Arrangers, theAdministrative Agent, the Lenders and the Issuing Banks (taken as a whole) in each applicable jurisdiction (and, inthe case of an actual or reasonably perceived conflict of interest where the party affected by such conflict hasnotified the Borrower of the existence of such conflict and thereafter retains its own counsel, one additional counselper affected party), in connection with the enforcement or protection of its rights (A) in connection with thisAgreement and the other Loan Documents, including its rights under this Section, or (B) in connection with theLoans made or Letters of Credit issued hereunder, including all such out of pocket expenses incurred during anyworkout, restructuring or negotiations in respect of such Loans or Letters of Credit.(b)Indemnification by the Borrower .. The Borrower shall indemnify each Arranger, theAdministrative Agent (and any subagent thereof), each Lender and each Issuing Bank, and each Related Party of anyof the foregoing Persons (each such Person being called an “Indemnitee ”) against, and hold each Indemniteeharmless from, and shall pay or reimburse any such Indemnitee for, any and all losses, claims, penalties (including,without limitation, any Environmental Claims or civil penalties or fines assessed by OFAC), damages, liabilities andrelated reasonable expenses (including the reasonable fees, charges and disbursements of any counsel for anyIndemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower orany other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of thisAgreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, theperformance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of thetransactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of theproceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter ofCredit if the documents presented in connection with such demand do not strictly comply with the terms of suchLetter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any propertyowned or operated by Holdings or any of its Subsidiaries, or any Environmental Claim related in any way toHoldings or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceedingrelating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by theBorrower, its affiliates, its equityholders or creditors, any other Loan Party, an Indemnitee or any other person, andregardless of whether any Indemnitee is a party thereto, or (v) any claim, penalties (including, without limitation, anyEnvironmental Claims or civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding(whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof,arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documentscontemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, includingwithout limitation, reasonable attorneys and consultant’s fees,provided that such indemnity shall not, as to anyIndemnitee, be available to the extent that such losses, claims, damages, liabilities or related reasonable expenses(w) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted fromthe gross negligence or willful misconduct of such Indemnitee or (x) arise out of a dispute that is solely betweenLenders in their capacities as Lenders (and not in any Lender’s capacity as Administrative Agent, Swingline Lenderor Issuing Bank) and not arising out of any act or omission of the Borrower or any of its Subsidiaries or Affiliates,(y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for material breach ofsuch Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party hasobtained a final and nonappealable judgment in its favor on such claim as determined by a court of competentjurisdiction or (z) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed todirect or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other LoanDocument or any agreement or instrument contemplated hereby or thereby, the Closing Date Transactions, any Loanor Letter of Credit or the use of the proceeds thereof;provided that nothing in this clause (z) shall limit theBorrower’s indemnity and reimbursement obligations to the extent that such special, indirect, consequential or-128-141683210_5 163765871_7 22-31184-1 C1.1 P150 |
the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent),to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to theAdministrative Agent, the Issuing Banks, the Swingline Lender and each other Lender hereunder (andinterest accrued thereon), and (B) acquire (and fund as appropriate) its fullpro rata share of all Loans andparticipations in Letters of Credit and Swingline Loans in accordance with its Commitment Percentage.Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any DefaultingLender hereunder shall become effective under Applicable Law without compliance with the provisions ofthis paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposesof this Agreement until such compliance occurs.Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of thisSection, from and after the effective date specified in each Assignment and Assumption, the assignee thereundershall be a party to this Agreement 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 theextent of the interest assigned by such Assignment and Assumption, be released from its obligations under thisAgreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights andobligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled tothe benefits ofSections 2.12 ,2.14 ,2.15 ,2.16 ,2.17 and9.03 with respect to facts and circumstances occurring priorto the effective date of such assignment;provided , that except to the extent otherwise expressly agreed by theaffected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any partyhereunder arising from that Xxxxxx’s having been a Defaulting Lender. Any assignment or transfer by a Lender ofrights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes ofthis Agreement as a sale by such Lender of a participation in such rights and obligations in accordance withparagraph (d) of this Section (other than a purported assignment to a natural person or the Borrower or any of theBorrower’s Subsidiaries or Affiliates, which shall be null and void except as set forth inSection 9.10(h) orSection 9.22 ).(c)Register .. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of theBorrower, shall maintain at one of its offices a copy of each Assignment and Assumption and each IncrementalFacility Amendment delivered to it and a register for the recordation of the names and addresses of the Lenders, andthe Commitment of, and principal amounts of (and stated interest on) the Loans owing to, each Lender pursuant tothe terms hereof from time to time (the “Register ”). The entries in the Register shall be conclusive, and theBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Registerpursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to thecontrary. The Register shall be available for inspection by the Borrower and any Lender (but only to the extent ofentries in the Register that are applicable to such Lender), at any reasonable time and from time to time uponreasonable prior notice.(d)Participations .. Any Lender may at any time, without the consent of, or notice to, the Borrower orthe Administrative Agent, sell participations to any Person (other than a natural person (or a holding company,investment vehicle or trust for or owned and operated for the primary benefit of, a natural person), a DisqualifiedLender or the Borrower or any of its Affiliates or Subsidiaries) (each, a “Participant ”) in all or a portion of suchLender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or theLoans owing to it);provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii)such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and(iii) the Borrower, the Administrative Agent, the Issuing Banks, the Swingline Lender and the other Lenders shallcontinue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations underthis Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity underSection 9.03(c) with respect to payments made by such Lender to its Participant(s).Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that suchLender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiverof any provision of this Agreement;provided that such agreement or instrument may provide that such Lender willnot, without the consent of the Participant, agree to any amendment, modification or waiver described in the firstproviso toSection 9.02 that directly affects such Participant. The Borrower agrees that each Participant shall be-133-141683210_5 163765871_7 22-31184-1 C1.1 P155 |
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party ”) becomes subjectto a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of suchQFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support,and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party willbe effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if theSupported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) weregoverned by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC ActAffiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, DefaultRights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Supportthat may be exercised against such Covered Party are permitted to be exercised to no greater extent than suchDefault Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the LoanDocuments were governed by the laws of the United States or a state of the United States. Without limitation of theforegoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lendershall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Xxxxxxx.Xx used in this Section 9.24 , the following terms have the following meanings:“BHC Act Affiliate ” of a party means an “affiliate” (as such term is defined under, and interpretedin accordance with, 12 U.S.C. 1841(k)) of such party.“Covered Entity ” means any of the following:(i)a “covered entity” as that term is defined in, and interpreted in accordance with,12 C.F.R. § 252.82(b);(ii)a “covered bank” as that term is defined in, and interpreted in accordance with,12 C.F.R. § 47.3(b); or(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12C.F.R. § 382.2(b).[Signature pages omitted]-140-141683210_5 163765871_7 22-31184-1 C1.1 P162 |
Exhibit B to Amendment No. 3 164058568_8 [amended Exhibits A, G and I to Credit Agreement attached] 00-00000-0 C1.1 P163 |
166734593_3 EXHIBIT A FORM OF BORROWING REQUEST Dated as of: _____________ Xxxxx Fargo Bank, National Association, as Administrative Agent MAC D 1109-019 0000 Xxxx X.X. Xxxxxx Xxxx. Xxxxxxxxx, XX 00000 Attention of: Syndication Agency Services Ladies and Gentlemen: This irrevocable Borrowing Request is delivered to you pursuant to Section 2.02 of the Credit Agreement dated as of October 2, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among Consolidated Communications Holdings, Inc., a Delaware corporation (“Holdings”), Consolidated Communications, Inc., an Illinois corporation (the “Borrower”), the financial institutions holding Loans or Commitments thereunder from time to time (the “Lenders”) and Xxxxx Fargo Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement. 1. The Borrower hereby requests that the Lenders make a Revolving Loan to the Borrower in the aggregate principal amount of $_____________.1 2. The Borrower hereby requests that such Loan be made on the following Business Day: _____________.2 3. The Borrower hereby requests that such Loan bear interest at the following interest rate, plus the Applicable Rate, as set forth below: Interest Rate Initial Interest Period (Adjusted Term SOFR only ) 3 Termination Date for Interest Period ( if applicable) [Alternate Base Rate or Adjusted Term SOFR] 4 4. The Borrower hereby requests that the proceeds of such Loan be disbursed into [the account identified in the most recent Notice of Account Designation delivered by the Borrower to the Administrative 1 Complete with an amount in accordance with Section 2.02(b) of the Credit Agreement for Revolving Loans. 2 Complete with a Business Day in accordance with Section 2.02(a) of the Credit Agreement for Revolving Loans. 3 Complete with 1, 3 or 6 months (or if available and agreed to by all relevant Lenders, 12 months). 4 Complete with (i) Alternate Base Rate for Revolving Loans that are ABR Loans, or (ii) Adjusted Term SOFR for Revolving Loans that are Term SOFR Loans. 00-00000-0 C1.1 P164 |
166734593_3 Agent] [the following account(s), which supersedes any direction provided in a previously delivered Notice of Account Designation]: ____________________________ ABA Routing Number: _________ Account Number: _____________] [Signature Page Follows] 00-00000-0 C1.1 P165 |
166734593_3 EXHIBIT G FORM OF NOTICE OF PREPAYMENT Dated as of: _____________ Xxxxx Fargo Bank, National Association, as Administrative Agent MAC D 1109-019 0000 Xxxx X.X. Xxxxxx Xxxx. Xxxxxxxxx, XX 00000 Attention of: Syndication Agency Services Ladies and Gentlemen: This Notice of Prepayment is delivered to you pursuant to Section 2.05(a) of the Credit Agreement dated as of October 2, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among Consolidated Communications Holdings, Inc., a Delaware corporation (“Holdings”), Consolidated Communications, Inc., an Illinois corporation (the “Borrower”), the financial institutions holding Loans or Commitments thereunder from time to time (the “Lenders”) and Xxxxx Fargo Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement. 1. The Borrower hereby provides notice to the Administrative Agent that it intends to repay [Revolving Loans] [the Initial Term Loan] [Incremental Term Loans] [Incremental Revolving Loans] [Extended Revolving Loans] [Extended Term Loans] [Refinancing Revolving Loans] [Refinancing Term Loans] [Swingline Loans] in the following amount: _______________.5 2. The Loans to be repaid are [[Eurodollar Loans made on [date] with [describe Interest Period]] [ABR Loans] [Term SOFR Loans made on [date] with [describe Interest Period]]] [[Eurodollar Loans made on [date] with [describe Interest Period]] [Term SOFR Loans made on [date] with [describe Interest Period]] and ABR Loans with the amount allocable to each being [________] and [______] respectively]. 3. The Borrower shall repay the above-referenced Loans on the following Business Day: _______________.6 4. [[The prepayment described in this Notice of Prepayment is conditioned upon [_______________]7 (the “Condition”). If the Condition is not satisfied, the Borrower may revoke this Notice of Prepayment by notice to the Administrative Agent prior to the date of prepayment specified herein]. [Signature Page Follows] 5 Complete with an amount in accordance with Section 2.05 of the Credit Agreement. 6 Complete with a date (a) no earlier than two (2) Business Days subsequent to date of this Notice of Prepayment (other than for prepayment of a Term SOFR Loan) or (b) no earlier than three (3) U.S. Government Securities Business Days subsequent to date of this Notice of Prepayment of each Term SOFR Loan. 7 Describe other financing or other transaction or condition. 00-00000-0 C1.1 P166 |
166734593_3 EXHIBIT I FORM OF NOTICE OF CONVERSION/CONTINUATION Dated as of: _____________ Xxxxx Fargo Bank, National Association, as Administrative Agent MAC D 1109-019 0000 Xxxx X.X. Xxxxxx Xxxx. Xxxxxxxxx, XX 00000 Attention of: Syndication Agency Services Ladies and Gentlemen: This irrevocable Notice of Conversion/Continuation (this “Notice”) is delivered to you pursuant to Section 2.03 of the Credit Agreement dated as of October 2, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among Consolidated Communications Holdings, Inc., a Delaware corporation (“Holdings”), Consolidated Communications, Inc., an Illinois corporation (the “Borrower”), the financial institutions holding Loans or Commitments thereunder from time to time (the “Lenders”) and Xxxxx Fargo Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement. 1. The Loan to which this Notice relates is a [Revolving Loan] [Term Loan]. 2. This Notice is submitted for the purpose of: Converting all or a portion of an [ABR Loan into a Eurodollar Loan]8[ABR Loan into a Term SOFR Loan]9 (a) The aggregate outstanding principal balance of such Loan is $_______________. (b) The principal amount of such Loan to be converted is $_______________. (c) The requested effective date of the conversion of such Loan is _______________. (d) The requested Interest Period applicable to the converted Loan is _______________. Converting a portion of [Eurodollar Loan into an ABR Loan][Term SOFR Loan into an ABR Loan] (a) The aggregate outstanding principal balance of such Loan is $_______________. (b) The last day of the current Interest Period for such Loan is _______________. (c) The principal amount of such Loan to be converted is $_______________. 8 Revolving Loans may only be converted from ABR Loans to Term SOFR Loans. 9 Term Loans may only be converted from ABR Loans to Eurodollar Loans. 00-00000-0 C1.1 P168 |
166734593_3 (d) The requested effective date of the conversion of such Loan is _______________. Continuing all or a portion of a [Eurodollar Loan as a Eurodollar Loan][Term SOFR Loan as a Term SOFR Loan] (a) The aggregate outstanding principal balance of such Loan is $_______________. (b) The last day of the current Interest Period for such Loan is _______________. (c) The principal amount of such Loan to be continued is $_______________. (d) The requested effective date of the continuation of such Loan is _______________. (e) The requested Interest Period applicable to the continued Loan is _______________. Converting all or a portion of a Eurodollar Loan into a Term SOFR Loan (a) The aggregate outstanding principal balance of such Loan is $_______________. (b) The last day of the current Interest Period for such Loan is _______________. (c) The principal amount of such Loan to be converted is $_______________. (d) The requested effective date of the conversion of such Loan is _______________. (e) The requested Interest Period applicable to the converted Loan is _______________. [Signature Page Follows] 00-00000-0 C1.1 P169 |