AHYDO Clause Samples

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 to the contrary set forth in this Agreement and the Notes Documents, if at the end of any accrual period (as defined in Section 1272(a)(5) of the Code) ending after the fifth (5th) anniversary of the date on which a Note is issued, the amount of accrued but unpaid original issue discount and interest (as determined pursuant to the Code) exceeds the product of (x) the issue price (as defined in Sections 1273(b) and 1274(a) of the Code and the regulations promulgated thereunder) and (y) the yield to maturity (interpreted in accordance with Section 163(i) of the Code (the “Maximum Amount”), then interest for such accrual period shall not be deferred and all accrued but unpaid interest and original issue discount (as determined by pursuant to the Code) as of the end of such accrual period shall be paid in an amount not less than the amount required to reduce the accrued but unpaid original issue discount at the end of such period to an amount less than the Maximum Amount (the “AHYDO Interest Payment”). No partial prepayment of the Notes pursuant to any other provision of this Agreement or the other Notes Documents shall alter the obligation of the Issuer to make payments provided for in this Section. For the avoidance of doubt and notwithstanding anything to the contrary herein, this Section shall be construed so as to require payments to be made in cash and at such times and in such amounts so as to cause the Notes to not be treated as having been issued with “significant original issue discount” within the meaning of Section 163(i)(2) pursuant to the Code.

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. 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 herein, although the parties acknowledge and agree that the “applicable high yield discount obligations” (“AHYDO”) within the meaning of Section 163(i)(1) of the Code should not apply to the Term A-1 Loan, the parties intend that the Term A-1 Loan will not be treated as an AHYDO within the meaning of Section 163(i)(1) of the Code. Accordingly, if applicable, in Borrower’s sole discretion, starting on the fifth (5th) anniversary of the Closing Date and prior to the end of each accrual period (as defined in Section 1272(a)(5) of the Code, if applicable) thereafter, the Borrower shall pay, if applicable, such amounts of accrued and unpaid interest or original issue discount (as determined for U.S. federal income tax purposes), if any, on the Term A-1 Loan as necessary to ensure that the Term A-1 Loan is not treated as having “significant original issue discount” within the meaning of Section 163(i) of the Code.

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. 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.

AHYDO. Notwithstanding anything to the contrary contained in this Agreement, if (1) the Convertible Notes remain outstanding after the fifth anniversary of the Closing Date and (2) the aggregate amount of the accrued but unpaid interest on the Convertible Notes (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date (as defined below) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as defined below), then all such accrued but unpaid interest on the Convertible 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 Purchasers on such Testing Date, it being the intent of the parties hereto that the Convertible Notes will not be treated as an “applicable high yield debt obligation” under Sections 163(e)(5) and Section 163(i) of the Internal Revenue Code and shall be interpreted consistently with such intent. For these purposes, the “Maximum Accrual” is an amount equal to the product of the Convertible Notes’ issue price (as defined in Internal Revenue Code Sections 1273(b) and 1274(a)) and their yield to maturity, and a “Testing Date” is any regularly scheduled date on which interest is required to be paid hereunder and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Internal Revenue 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 the Convertible Notes is made. \\4140-6447-8783 v164123-4063-4962 v3

AHYDO. The Borrower shall pay on the first Interest Payment Date occurring after the fifth anniversary of the date hereof and on each subsequent Interest Payment Date (or, if earlier, before the close of any “accrual period” (as defined in Section 1272(a)(5) of the Code) ending after five (5) years from the date hereof) a portion of the accrued but Unpaid Interest on the Term Loans in an amount sufficient to ensure that the Term Loans will not be “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code (each payment a “Special Mandatory Repayment”) and that the Term Loans shall be treated as not having “significant original issue discount” within the meaning of Section 163(i)(2) of the Code, provided that any interest that is paid using the proceeds of a Delayed Draw Term Loan shall not be considered paid for purposes of this Section 10.13. This Section 10.13 shall be interpreted in a manner consistent with the intent that the Loans will not be an “applicable high yield