AHYDO. Notwithstanding anything to the contrary contained in Section 2, if (1) the loans evidenced by the Notes remain outstanding after the fifth anniversary of the initial issuance thereof and (2) the aggregate amount of the accrued but unpaid interest on such loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual, then all such accrued but unpaid interest on such loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Borrower to the holders thereof on such Testing Date, it being the intent of the parties hereto that the deductibility of interest under such loans shall not be limited or deferred by reason of Section 163(i) of the Code. For these purposes, the “Maximum Accrual” is an amount equal to the product of the issue price of such loans (as defined in Code Sections 1273(b) and 1274(a)) and their yield to maturity, and a “Testing Date” is any Interest Payment Date and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Code) closes. Any accrued interest which for any reason has not theretofore been paid shall be paid in full on the date on which the final principal payment on such loans is made.
AHYDO. Notwithstanding anything to the contrary contained in the Loan Documents, if (i) any portion of the Loans remains outstanding after the fifth anniversary of the initial incurrence thereof and (ii) the aggregate amount of the accrued but unpaid interest on such portion of the Loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any AHYDO Testing Date (as hereinafter defined) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as hereinafter defined), then all such accrued but unpaid interest on such portion of the Loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by Borrower on such AHYDO Testing Date, it being the intent of the parties hereto that the deductibility of interest under such portion of the Loans shall not be limited or deferred by reason of Section 163(i) of the Internal Revenue Code, as amended (the “IRC”). As used herein, the “Maximum Accrual” is an amount equal to the product of the issue price (as defined in IRC Sections 1273(b) and 1274(a)) of the Loan and its yield to maturity (as determined for purposes of Section 163(i) of the IRC), and a “AHYDO Testing Date” is any date on which interest is due and payable and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the IRC) closes. Any accrued interest that, for any reason, has not theretofore been paid shall be paid in full on the date on which the final principal payment on the Loan or any portion thereof is made.
AHYDO. Notwithstanding anything herein to the contrary, if (1) the Initial Term Loans remain outstanding after the fifth anniversary of the initial issuance thereof and (2) the aggregate amount of the accrued but unpaid interest on the Initial Term Loans (including any amounts treated as interest for U.S. federal income tax purposes, such as “original issue discount”) as of any Testing Date occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual, then all such accrued but unpaid interest on the Initial Term Loans (including any amounts treated as interest for U.S. federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Borrower to the Lenders on such Testing Date, it being the intent of the parties hereto that the deductibility of interest under the Initial Term Loans shall not be limited or deferred by reason of Section 163(e)(5) and Section 163(i) of the Code. For these purposes, the “Maximum Accrual” is an amount equal to the product of such Initial Term Loans’ issue price (as defined in Code Sections 1273(b) and 1274(a)) and their yield to maturity, and a “Testing Date” is the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Code) closes.
AHYDO. Notwithstanding anything in this Agreement or the Notes to the contrary, on the date of the end of each accrual period (as determined for purposes of Section 163(i) of the Code) ending after the fifth anniversary of the issuance of a Note (as determined for U.S. federal income tax purposes) (each such date, an “AHYDO Payment Date”), the Borrower shall pay in cash to each Lender holding a Note an amount equal to its pro rata portion of the excess of (i) the aggregate amount that would be includible in such Lender’s aggregate gross income with respect to such Lender’s Note for all periods ending on or before such AHYDO Payment Date over (ii) an amount equal to the sum of (x) the aggregate amount of interest to be paid under such Note on or before such date and (y) the product of (A) the issue price (as defined in Sections 1273(b) and 1274(a) of the Code) of such Note and (B) the yield to maturity of such Note (as determined for purposes of Section 163(i) of the Code). The parties intend for the Loans to not constitute “applicable high yield discount obligations” within the meaning of Section 163(i) of the Code, and this Section 2.6(e) shall be interpreted consistent with such intent.
AHYDO. The Second Lien Notes shall contain customary “AHYDO catch-up” payment provisions, providing that the Issuer will make payments on the Second Lien Notes, before the close of any accrual period ending after the fifth anniversary of the issue date, an amount sufficient to ensure that the Second Lien Notes will not be “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Internal Revenue Code. Governing Law: New York.
AHYDO. If (i) the Loans remain outstanding after the fifth anniversary of the initial issuance thereof and (ii) the aggregate amount of the accrued but unpaid interest on the Loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any AHYDO Testing Date (as defined below) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as defined below), then a portion of each payment pursuant to Section 3.01(a) equal to such excess shall be treated as interest and the remaining portion shall be treated as repayment of principal, provided, however, if the full amount of such payment pursuant to Section 3.01(a) is less than such excess, an additional amount of interest equal to such deficit shall be paid in cash by the Borrower as of such AHYDO Testing Date. The parties hereto intend that the deductibility of interest on the Loans shall not be limited or deferred by reason of Section 163(i) of the Code and this provision shall be treated consistently therewith. For these purposes, (i) the “Maximum Accrual” is an amount equal to the product of the issue price (as defined in Sections 1273(b) and 1274(a) of the Code) of such Loans and their yield to maturity (as defined in Treas. Reg. Section 1.1272-1(b)(1)(i)), and (ii) an “AHYDO Testing Date” is any Payment Date. For the avoidance of doubt, the “accrual period” (within the meaning of Section 1272(a)(5) of the Code) shall end on such Payment Date.
AHYDO. Notwithstanding anything in this Agreement to the contrary, commencing with the first “accrual period” (as defined under IRC Treasury Regulation Section 1.1272-1(b)(1)(ii)) ending after the fifth anniversary of the Effective Date, and each accrual period thereafter, Borrower shall, in respect of any Term Loan, pay in cash, on or before the end of such accrual period, both the stated interest due and payable as set forth in Section 2.3 and any accrued and unpaid “original issue discount” (determined in accordance with IRC Treasury Regulation Sections 1.1273-1 and 1.1272-1 and taking into account, for the avoidance of doubt, the Additional Consideration) with respect to such Term Loan if, but only to the extent that, the aggregate amount of such original issue discount that has accrued and has not been paid in cash from the Effective Date through the end of such accrual period (treating any payments made pursuant to this Article 2 as a payment of interest and original issue discount to the full extent required under IRC Treasury Regulation Sections 1.446-2(e)(l) and 1.1275-2(a)) exceeds the product of the “issue price” (as defined in IRC Treasury Regulation Section 1.1273-2(a)(1)) of such Term Loan and the “yield to maturity” (determined in accordance with IRC Treasury Regulation Section 1.1272-1(b) and taking into account, for the avoidance of doubt, the Additional Consideration) on such Term Loan.
AHYDO. Notwithstanding anything to the contrary contained elsewhere in this Agreement, if (1) the Notes remain outstanding after the fifth anniversary of the initial issuance thereof and (2) the aggregate amount of the accrued but unpaid interest on the Notes (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date (as hereinafter defined) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as hereinafter defined), then all such accrued but unpaid interest on the Notes (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Issuer to the holders of the Notes on such Testing Date, it being the intent of the parties hereto that the deductibility of interest under the Notes shall not be limited or deferred by reason of Section 163(i) of the Code. For these purposes, the “Maximum Accrual” is an amount equal to the product of the issue price (as defined in Code Sections 1273(b) and 1274(a)) of such Notes and their yield to maturity, and a “Testing Date” is any Interest Payment Date and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Code) closes. Any accrued interest that for any reason has not theretofore been paid shall be paid in full on the date on which the final principal payment on a Note is made.
AHYDO. Notwithstanding any other provision of this Agreement, on any Preferred Return payment date on or before the last day of each accrual period that ends after the date that is five years after the date of issue of Class B Preferred Units, the Company shall pay a minimum amount of accrued and unpaid interest on the Class B Preferred Units (i.e., a portion of the 6% per annum interest paid-in-kind) in cash as shall be necessary to ensure that the Class B Preferred Units shall not be considered “applicable high yield discount obligations” (“AHYDOs”) within the meaning of Section 163(i) of the Code, or any successor provision. If definitive guidance is published by the Internal Revenue Service clarifying the application of the AHYDO rules in such a way that would require lesser payments than those described in the preceding paragraph, the amounts of the required payments shall be reduced or eliminated to the greatest extent that would permit the Class B Preferred Units to be exempt from treatment as AHYDOs under such guidance.
AHYDO. If, on any Quarterly Payment Date following the fifth anniversary of the Closing Date, the aggregate amount that would be includible in income of a Lender with respect to a Loan for periods ending on or before such interest payment date (within the meaning of Section 163(i) of the Code) (the “Aggregate Accrual”) would exceed an amount equal to the sum of (x) the aggregate amount of interest to be paid (within the meaning of Section 163(i) of the Code) under the Loan on or before such interest payment date and (y) the product of (A) the issue price (as defined in Sections 1273(b) and 1274(a) of the Code) of the Loan and (B) the yield to maturity (interpreted in accordance with Section 163(i) of the Code) of the Loan (such sum, the “Maximum Accrual”), then, on such interest payment date, the Borrower shall pay to such Lender an aggregate amount of cash equal to the excess, if any, of the Aggregate Accrual over the Maximum Accrual (each such payment referred to as an “AHYDO Payment”) and the amount of such payment shall be treated for purposes of Section 163(i) of the Code as interest paid under the Loan.
