AMENDMENT NO. 2 TO CREDIT AGREEMENT
Execution Version
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Agreement”), dated as of June 9, 2023, is entered into among CUMULUS MEDIA NEW HOLDINGS INC., a Delaware corporation (the “Borrower Agent”), each of the Restricted Subsidiaries of the Borrower Agent party hereto (together with the Borrower Agent, the “Borrowers”), CUMULUS MEDIA INTERMEDIATE INC., a Delaware corporation (“Intermediate Holdings”), the other Guarantors party hereto and BANK OF AMERICA, N.A., as administrative agent (the “Administrative Agent”).
RECITALS
WHEREAS, the Borrowers, Intermediate Holdings, the lenders from time to time party thereto (the “Lenders”), and Bank of America, N.A., as Administrative Agent, have entered into that certain Credit Agreement dated as of September 26, 2019 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”);
WHEREAS, certain loans, disbursements and/or other extensions of credit (the “Loans”) under the Credit Agreement incur or are permitted to incur interest, fees, commissions or other amounts based on the London Interbank Offered Rate as administered by the ICE Benchmark Administration (“LIBOR”) in accordance with the terms of the Credit Agreement; and
WHEREAS, applicable parties under the Credit Agreement have determined in accordance with the Credit Agreement that LIBOR should be replaced with a successor rate in accordance with the Credit Agreement and, in connection therewith, the Administrative Agent has determined that certain conforming changes are necessary or advisable.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement, as amended by this Agreement.
2. Amendments.
(a) Notwithstanding anything to the contrary contained in the Credit Agreement or in any other Loan Document, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Exhibit A hereto.
(b) Exhibit C to the Credit Agreement is hereby amended and restated as set forth on Exhibit B hereto.
3. Conditions Precedent. This Agreement shall become effective on the first date on which the following conditions are satisfied (the date of the satisfaction of all such conditions, the “Amendment Effective Date”):
(a) the Administrative Agent has received counterparts of this Agreement, properly executed by the Borrowers, Intermediate Holdings, each other Guarantor and the Administrative Agent;
(b) the representations and warranties set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Amendment Effective Date (both before and after giving effect thereto) to the same extent as though made on and as of the Amendment Effective Date except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true
and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of such earlier date and (ii) no Event of Default or Default has occurred and is continuing;
(c) the Administrative Agent shall have posted this Agreement to all Lenders and the Borrower Agent, and the Administrative Agent shall not have received, prior to 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted this Agreement to all Lenders and the Borrower Agent, written notice of objection to the SOFR Adjustment from Lenders comprising the Required Lenders; and
(d) the Borrower Agent has paid to the Administrative Agent the fees and expenses required to be paid to the Administrative Agent pursuant to Section 11.5 of the Credit Agreement on the Amendment Effective Date.
4. Payment of Expenses. The Borrowers agree to reimburse the Administrative Agent for all reasonable fees, charges and disbursements of the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, including all reasonable fees, charges and disbursements of counsel to the Administrative Agent (paid directly to such counsel if requested by the Administrative Agent).
5. Miscellaneous.
(a) The Loan Documents, and the obligations of each Loan Party under the Loan Documents are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document.
(b) Each Loan Party (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents, (iii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Security Documents continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (v) confirms its grant of security interests pursuant to the Security Documents to which it is a party as Collateral for the Obligations, and (vi) acknowledges that all Liens granted (or purported to be granted) pursuant to the Security Documents remain and continue in full force and effect in respect of, and to secure, the Obligations. Each Guarantor hereby reaffirms its obligations under the Guarantee and Collateral Agreement and agrees that its obligation to guarantee the Obligations is in full force and effect as of the date hereof.
(c) Each Loan Party represents and warrants that:
(i) The execution, delivery and performance by such Person of this Agreement is within such Person’s organizational powers and has been duly authorized by all necessary organizational, partnership, member or other action, as applicable, as may be necessary or required.
(ii) This Agreement has been duly executed and delivered by such Person, and constitutes a valid and binding obligation of such Person, enforceable against it in accordance with the terms hereof, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
(iii) The execution and delivery by such Person of this Agreement and performance by such Person of this Agreement have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of its certificate or articles of incorporation or organization or other applicable constitutive documents, (ii) conflict with or result in any breach or contravention of, or the creation of any lien under, or require any payment to be made under (x) any contractual obligation to which such Person is a party or affecting such Person or the
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properties of such Person or any subsidiary thereof or (y) any order, injunction, writ or decree of any governmental authority or any arbitral award to which such Person or any subsidiary thereof or its property is subject or (iii) violate any law.
(iv) Before and after giving effect to this Agreement, (A) all representations and warranties of such Person set forth in the Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality (after giving effect to such materiality qualification)) on and as of the Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality (after giving effect to such materiality qualification)) as of such earlier date), and (B) no Event of Default or Default has occurred and is continuing.
(d) This Agreement may be in the form of an electronic record (in “.pdf” form or otherwise) and may be executed using electronic signatures, which shall be considered as originals and shall have the same legal effect, validity and enforceability as a paper record. This Agreement may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts shall be one and the same Agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent of a manually signed Agreement which has been converted into electronic form (such as scanned into “.pdf” format), or an electronically signed Agreement converted into another format, for transmission, delivery and/or retention.
(e) Any provision of this Agreement held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(f) The terms of the Credit Agreement with respect to governing law, submission to jurisdiction, waiver of venue and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
(g) On and after the Amendment Effective Date, each reference in any existing Loan Document to such Loan Document, and the use therein of “hereunder”, “herein” or words of like import referring to such existing Loan Document, and each reference in the other existing Loan Documents to another existing Loan Document and the use therein of “thereunder”, “thereof” or words of like import referring to such Loan Document, shall, in each case, mean and be a reference to such existing Loan Document as amended by this Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or any other party 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 Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
(h) To the extent any Term Loan bearing interest at the Eurodollar Rate (as such term is defined in the Credit Agreement prior to this Agreement) is outstanding on the Amendment Effective Date, such Term Loan shall continue to bear interest at the Eurodollar Rate (as such term is defined in the Credit Agreement prior to this Agreement) until the end of the current Interest Period or payment period applicable to such Term Loan.
[remainder of page intentionally left blank]
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Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: CUMULUS MEDIA NEW HOLDINGS INC.
CONSOLIDATED IP COMPANY LLC
BROADCAST SOFTWARE
INTERNATIONAL LLC
INCENTREV-RADIO HALF OFF LLC
CUMULUS INTERMEDIATE HOLDINGS LLC
INCENTREV LLC
CUMULUS NETWORK HOLDINGS LLC
CUMULUS RADIO LLC
LA RADIO, LLC
XXXX-FM RADIO ASSETS, LLC
DETROIT RADIO, LLC
DC RADIO ASSETS, LLC
CHICAGO FM RADIO ASSETS, LLC
CHICAGO RADIO ASSETS, LLC
ATLANTA RADIO, LLC
MINNEAPOLIS RADIO ASSETS, LLC
NY RADIO ASSETS; LLC
RADIO ASSETS, LLC
SAN FRANCISCO RADIO ASSETS, LLC
WBAP-KSCS ASSETS, LLC
WPLJ RADIO, LLC
WESTWOOD ONE, LLC
CMP SUSQUEHANNA RADIO HOLDINGS LLC
CUMULUS BROADCASTING LLC
DIAL COMMUNICATIONS GLOBAL
MEDIA, LLC
RADIO NETWORKS, LLC
WESTWOOD ONE RADIO NETWOKS LLC
CMP SUSQUEHANNA LLC
CATALYST MEDIA, LLC
SUSQUEHANNA PFALTZGRAFF LLC
CMP KC LLC
SUSQUEHANNA MEDIA LLC
SUSQUEHANNA RADIO LLC
KLIF BROADCASTING, LLC
RADIO METROPLEX, LLC
BROADCAST SOFTWARE
INTERNATIONAL LLC
INCENTREV-RADIO HALF OFF LLC
CUMULUS INTERMEDIATE HOLDINGS LLC
INCENTREV LLC
CUMULUS NETWORK HOLDINGS LLC
CUMULUS RADIO LLC
LA RADIO, LLC
XXXX-FM RADIO ASSETS, LLC
DETROIT RADIO, LLC
DC RADIO ASSETS, LLC
CHICAGO FM RADIO ASSETS, LLC
CHICAGO RADIO ASSETS, LLC
ATLANTA RADIO, LLC
MINNEAPOLIS RADIO ASSETS, LLC
NY RADIO ASSETS; LLC
RADIO ASSETS, LLC
SAN FRANCISCO RADIO ASSETS, LLC
WBAP-KSCS ASSETS, LLC
WPLJ RADIO, LLC
WESTWOOD ONE, LLC
CMP SUSQUEHANNA RADIO HOLDINGS LLC
CUMULUS BROADCASTING LLC
DIAL COMMUNICATIONS GLOBAL
MEDIA, LLC
RADIO NETWORKS, LLC
WESTWOOD ONE RADIO NETWOKS LLC
CMP SUSQUEHANNA LLC
CATALYST MEDIA, LLC
SUSQUEHANNA PFALTZGRAFF LLC
CMP KC LLC
SUSQUEHANNA MEDIA LLC
SUSQUEHANNA RADIO LLC
KLIF BROADCASTING, LLC
RADIO METROPLEX, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Secretary and General Counsel
Title: Executive Vice President, Secretary and General Counsel
[Signature Page to Amendment No. 2 - Cumulus Media New Holdings Inc.]
INTERMEDIATE HOLDINGS: CUMULUS MEDIA INTERMEDIATE INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Secretary and General Counsel
Title: Executive Vice President, Secretary and General Counsel
[Signature Page to Amendment No. 2 - Cumulus Media New Holdings Inc.]
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
[Signature Page to Amendment No. 2 - Cumulus Media New Holdings Inc.]
EXHIBIT A
[Attached]
[Attached]
Unofficial Conformed Copy through Amendment No. 0Xxxxxxx A
Deal CUSIP: 00000XXX0
Term Facility CUSIP: 00000XXX0
CREDIT AGREEMENT
among
CUMULUS MEDIA INTERMEDIATE INC.,
CUMULUS MEDIA NEW HOLDINGS INC.,
as a Borrower,
as a Borrower,
THE RESTRICTED SUBSIDIARIES OF CUMULUS MEDIA NEW HOLDINGS INC. PARTY HERETO,
as Borrowers,
as Borrowers,
CERTAIN LENDERS,
and
and
BANK OF AMERICA, N.A.
as Administrative Agent,
as Administrative Agent,
Dated as of September 26, 2019
BANK OF AMERICA, N.A.,
CREDIT SUISSE LOAN FUNDING LLC
DEUTSCHE BANK SECURITIES INC.
XXXXXX XXXXXXX SENIOR FUNDING, INC.
JPMORGAN CHASE BANK, N.A.
and
FIFTH THIRD BANK,
Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
Page | |||||
SECTION 1. DEFINITIONS | 1 | ||||
1.1 Defined Terms | 1 | ||||
1.2 Other Definitional Provisions | 3836 | ||||
1.3 Limited Condition Acquisition | 3937 | ||||
1.4 Interest Rates | 4038 | ||||
SECTION 2. AMOUNT AND TERMS OF THE TERM LOAN COMMITMENTS | 4138 | ||||
2.1 Term Loans | 4138 | ||||
2.2 Repayment of Term Loans | 4139 | ||||
2.3 Borrowings, Conversions and Continuations of Term Loans. | 4139 | ||||
2.4 Incremental Term Loan Commitments. | 4340 | ||||
2.5 Sharing of Payments by Lenders | 4643 | ||||
SECTION 3. [RESERVED] | 4744 | ||||
SECTION 4. GENERAL PROVISIONS APPLICABLE TO TERM LOANS | 4744 | ||||
4.1 [Reserved]. | 4744 | ||||
4.2 Repayment of Term Loans; Evidence of Debt | 4744 | ||||
4.3 [Reserved] | 4744 | ||||
4.4 Mandatory Reduction of Commitments. | 4744 | ||||
4.5 Optional Prepayments. | 4845 | ||||
4.6 Mandatory Prepayments. | 4845 | ||||
4.7 Interest Rates and Payment Dates. | 4847 | ||||
4.8 Computation of Interest and Fees. | 5147 | ||||
4.9 [Reserved]. | 5147 | ||||
4.10 Certain Fees | 5148 | ||||
4.11 [Reserved] | 5148 | ||||
4.12 [Reserved]. | 5148 | ||||
4.13 [Reserved]. | 5148 | ||||
4.14 [Reserved]. | 5148 | ||||
4.15 Inability to Determine Interest Rate for Eurodollar Loans. | 5148 | ||||
4.16 Pro Rata Treatment and Payments | 5450 | ||||
4.17 Illegality | 5551 | ||||
4.18 Requirements of Law | 5551 | ||||
4.19 Indemnity | 5652 | ||||
4.20 Taxes | 5753 | ||||
4.21 [Reserved]. | 6055 | ||||
4.22 Mitigation; Replacement of Lenders. | 6056 | ||||
4.23 Prepayments Below Par. | 6156 | ||||
4.24 Extensions of Term Loans. | 6358 | ||||
4.25 Borrower Agent | 6459 | ||||
4.26 Refinancing Facilities | 6560 |
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Page | |||||
SECTION 5. REPRESENTATIONS AND WARRANTIES | 6761 | ||||
5.1 Financial Condition. | 6761 | ||||
5.2 Corporate Existence; Compliance with Law | 6762 | ||||
5.3 Corporate Power; Authorization | 6762 | ||||
5.4 Enforceable Obligations | 6862 | ||||
5.5 No Legal Bar | 6862 | ||||
5.6 No Material Litigation | 6863 | ||||
5.7 Investment Company Act | 6863 | ||||
5.8 Federal Regulation; Use of Proceeds | 6863 | ||||
5.9 No Default or Breach | 6963 | ||||
5.10 Taxes | 6963 | ||||
5.11 Subsidiaries; Loan Parties | 6963 | ||||
5.12 Ownership of Property; Liens; Licenses. | 6964 | ||||
5.13 Intellectual Property | 6964 | ||||
5.14 Labor Matters | 7064 | ||||
5.15 ERISA | 7064 | ||||
5.16 Environmental Matters. | 7064 | ||||
5.17 Disclosure | 7165 | ||||
5.18 Security Documents. | 7165 | ||||
5.19 Solvency | 7166 | ||||
5.20 [Reserved]. | 7166 | ||||
5.21 Patriot Act | 7266 | ||||
5.22 Anti-Corruption Laws and Sanctions | 7266 | ||||
5.23 Plan Assets; Prohibited Transactions | 7266 | ||||
5.24 Beneficial Ownership Certificate | 7266 | ||||
5.25 Covered Entities | 7266 | ||||
SECTION 6. CONDITIONS PRECEDENT | 7266 | ||||
6.1 Conditions Precedent to Effectiveness | 7266 | ||||
SECTION 7. AFFIRMATIVE COVENANTS | 7569 | ||||
7.1 Financial Statements | 7569 | ||||
7.2 Certificates; Other Information | 7770 | ||||
7.3 Payment of Obligations | 7871 | ||||
7.4 Conduct of Business; Maintenance of Existence; Compliance | 7871 | ||||
7.5 Maintenance of Property; Insurance | 7872 | ||||
7.6 Inspection of Property; Books and Records; Discussions; Annual Meetings | 7972 | ||||
7.7 Notices | 7973 | ||||
7.8 Environmental Laws | 8073 | ||||
7.9 [Reserved]. | 8074 | ||||
7.10 Additional Loan Parties; Pledge of Stock of Additional Subsidiaries; Additional Collateral, etc. | 8174 | ||||
7.11 Broadcast License Subsidiaries. | 8275 |
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Page | |||||
7.12 [Reserved]. | 8376 | ||||
7.13 Ratings | 8376 | ||||
7.14 Use of Proceeds | 8376 | ||||
7.15 Anti-Corruption Laws and Sanctions | 8376 | ||||
7.16 Designation of Subsidiaries | 76 | ||||
SECTION 8. NEGATIVE COVENANTS | 8376 | ||||
8.1 [Reserved]. | 8376 | ||||
8.2 Indebtedness | 8377 | ||||
8.3 Limitation on Liens | 8679 | ||||
8.4 Limitation on Contingent Obligations | 8682 | ||||
8.5 Prohibition of Fundamental Changes | 9083 | ||||
8.6 Prohibition on Sale of Assets | 9083 | ||||
8.7 Limitation on Investments, Loans and Advances | 9386 | ||||
8.8 Limitation on Restricted Payments | 9689 | ||||
8.9 Transactions with Affiliates | 9991 | ||||
8.10 Limitation on Sales and Leasebacks | 9991 | ||||
8.11 Fiscal Year | 9991 | ||||
8.12 Negative Pledge Clauses | 9991 | ||||
8.13 Clauses Restricting Subsidiary Distributions | 10092 | ||||
8.14 FCC Licenses | 10092 | ||||
8.15 Certain Payments of Indebtedness | 10092 | ||||
8.16 Amendment of Material Documents | 10193 | ||||
8.17 Restrictions on Intermediate Holdings | 10193 | ||||
8.18 Prohibition on Division/Series Transactions | 10193 | ||||
SECTION 9. EVENTS OF DEFAULT | 10193 | ||||
SECTION 10. THE ADMINISTRATIVE AGENT | 10496 | ||||
10.1 Appointment and Authority. | 10496 | ||||
10.2 Rights as a Lender | 10496 | ||||
10.3 Exculpatory Provisions | 10596 | ||||
10.4 Reliance by Administrative Agent | 10697 | ||||
10.5 Delegation of Duties | 10697 | ||||
10.6 Resignation of Administrative Agent. | 10698 | ||||
10.7 Non-Reliance on Administrative Agent and Other Lenders | 10798 | ||||
10.8 No Other Duties, Etc. | 10798 | ||||
10.9 Administrative Agent May File Proofs of Claim; Credit Bidding. | 10799 | ||||
10.10 Collateral and Guarantee Matters | 108100 | ||||
10.11 Certain ERISA Matters. | 109100 | ||||
10.12 Posting of Communications | 110100 | ||||
SECTION 11. MISCELLANEOUS | 112103 | ||||
11.1 Amendments and Waivers | 112103 | ||||
11.2 Notices | 114104 | ||||
11.3 No Waiver; Cumulative Remedies | 115105 | ||||
11.4 Survival of Representations and Warranties | 115106 |
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Page | |||||
11.5 Payment of Expenses | 115106 | ||||
11.6 Successors and Assigns; Participations; Purchasing Lenders | 117107 | ||||
11.7 Adjustments; Set-off | 121111 | ||||
11.8 Counterparts | 122112 | ||||
11.9 Integration | 122112 | ||||
11.10 GOVERNING LAW; NO THIRD PARTY RIGHTS. | 122112 | ||||
11.11 SUBMISSION TO JURISDICTION; WAIVERS | 123113 | ||||
11.12 Acknowledgements | 124113 | ||||
11.13 [Reserved]. | 124114 | ||||
11.14 Joint and Several Liability | 124114 | ||||
11.15 Confidentiality | 125114 | ||||
11.16 Usury Savings | 125115 | ||||
11.17 Severability | 125115 | ||||
11.18 Patriot Act | 126116 | ||||
11.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 126116 | ||||
11.20 Conditional Restrictions on Parent | 127116 | ||||
11.21 Acknowledgment Regarding Any Supported QFCs | 127116 | ||||
11.22 Electronic Execution of Assignments and Certain Other Documents | 128117 |
SCHEDULES:
Schedule 1.1A Lenders and Term Loan Commitments
Schedule 1.1B Mortgaged Properties
Schedule 1.1C Excluded Accounts
Schedule 5.6 Litigation
Schedule 5.9 No Default
Schedule 5.11(a) Domestic Subsidiaries
Schedule 5.11(b) Foreign Subsidiaries
Schedule 5.11(c) Loan Parties
Schedule 5.12 FCC Licenses
Schedule 5.16 Environmental Matters
Schedule 5.18 Financing Statements and Other Filings
Schedule 7.11 FCC Licenses
Schedule 8.2 Existing Indebtedness
Schedule 8.3 Existing Liens
Schedule 8.4 Existing Contingent Obligations
Schedule 8.6(g) Stations in Trust
Schedule 8.6(y) Permitted Dispositions
Schedule 8.7 Existing Investments, Loans and Advances
Schedule 8.9 Transactions with Affiliates
EXHIBITS:
Exhibit A Form of Guarantee and Collateral Agreement
Exhibit B-1 Form of Intermediate Holdings Closing Certificate
Exhibit B-2 Form of New Holdings Closing Certificate
Exhibit B-3 Form of Effective Date Subsidiary Borrower Closing Certificate
Exhibit C Form of Committed Loan Notice
Exhibit D Form of Assignment and Assumption
Exhibit E [Reserved]
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Exhibit F-1 Form of U.S. Tax Compliance Certificate for Foreign Lenders that Are Not Partnerships for U.S. Federal Income Tax Purposes
Exhibit F-2 Form of U.S. Tax Compliance Certificate for Foreign Participants that Are Not Partnerships for U.S. Federal Income Tax Purposes
Exhibit F-3 Form of U.S. Tax Compliance Certificate for Foreign Participants that Are Partnerships for U.S. Federal Income Tax Purposes
Exhibit F-4 Form of U.S. Tax Compliance Certificate for Foreign Lenders that Are Partnerships for U.S. Federal Income Tax Purposes
Exhibit G Form of Discounted Prepayment Option Notice
Exhibit H Form of Lender Participation Notice
Exhibit I Form of Discounted Voluntary Prepayment Notice
Exhibit J Form of Solvency Certificate
Exhibit K Form of Joinder Agreement
Exhibit L Form of Mortgage
Exhibit M Form of Compliance Certificate
Exhibit N Form of Incremental Term Loan Commitment Agreement
Exhibit O Form of Note
Exhibit P Form of Pari Passu Intercreditor Agreement
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CREDIT AGREEMENT (this “Agreement”), dated as of September 26, 2019, among CUMULUS MEDIA INTERMEDIATE INC., a Delaware corporation (“Intermediate Holdings”), CUMULUS MEDIA NEW HOLDINGS INC., a Delaware corporation (“New Holdings” or the “Borrower Agent”), each of the Restricted Subsidiaries (as hereinafter defined) of New Holdings that, as of the Effective Date (as hereinafter defined), is signatory hereto as a “Borrower” (each, an “Effective Date Subsidiary Borrower”), each of the Restricted Subsidiaries of New Holdings that, in accordance with subsection 7.10(a), becomes a borrower hereunder after the Effective Date (together with New Holdings and the Effective Date Subsidiary Borrowers, each a “Borrower” and, collectively, the “Borrowers”), the Lenders (as hereinafter defined) from time to time party hereto, BANK OF AMERICA, N.A., as administrative agent for the Lenders and, solely for purposes of subsection 11.20, CUMULUS MEDIA INC., a Delaware corporation (“Parent”).
WHEREAS, the Borrowers have requested that the Lenders make Initial Term Loans under this Agreement in the amount of $525,000,000, and the Borrowers will use the proceeds of such borrowings to fund the Refinancing and to pay certain fees and expenses related to the Transactions; and
WHEREAS, the Lenders have indicated their willingness to lend such Initial Term Loans on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in the preamble or recitals hereto shall have the meanings set forth therein, and the following terms shall have the following meanings:
“ABL Agent”: Deutsche Bank AG New York Branch, as administrative agent and collateral agent under the Existing ABL Facility.
“ABL Facility”: as defined in the definition of Permitted Revolving Credit Facility.
“ABL Priority Collateral”: has the meaning given to such term in the Permitted ABL Intercreditor Agreement.
“ABR”: for any day a fluctuating rate per annum equal to the highest of (a) the NYFRB Rate plus 1/2 of 1% (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its Prime Rate, and (c) the Eurodollar RateTerm SOFR plus 1.00%. If the ABR is being used as an alternate rate of interest pursuant to subsection 4.15 hereof, then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. Notwithstanding the foregoing, ABR shall at all times not be less than 2.00% per annum.
“ABR Loans”: Term Loans whose interest rate is based on the ABR.
“Acceptable Discount”: as defined in subsection 4.23.
“Acceptance Date”: as defined in subsection 4.23.
“Accounting Changes”: as defined in the definition of “GAAP.”
“Act”: as defined in subsection 11.18.
“Additional Intercreditor Agreement” shall mean an intercreditor agreement among the Administrative Agent, each Pari Passu Representative, if applicable, and one or more Junior Representatives for holders of Permitted Junior Debt providing that, inter alia, the Liens on the Collateral in favor of the Administrative Agent (for the benefit of the Secured Parties) shall be senior to such Liens
in favor of the Junior Representatives (for the benefit of the holders of Permitted Junior Debt), as such intercreditor agreement may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof. The Additional Intercreditor Agreement shall be in a form customary at such time for transactions of the type contemplated thereby and reasonably satisfactory to the Administrative Agent and Borrower Agent.
“Adjustment”: as defined in subsection 4.15.
“Administrative Agent”: Bank of America, in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity as provided in Section 10.
“Administrative Agent’s Account”: the account designated from time to time in writing as the “Administrative Agent’s Account” by the Administrative Agent to the other parties hereto.
“Administrative Agent’s Office” means, with respect to Dollars, the Administrative Agent’s address and, as appropriate, account specified in the Credit Agreement with respect to Dollars, or such other address or account with respect to Dollars as the Administrative Agent may from time to time notify the Borrower and the Lenders
“Administrative Questionnaire”: an Administrative Questionnaire in the form supplied from time to time by the Administrative Agent.
“Affiliate”: of any Person (a) any Person which, directly or indirectly, is in control of, is controlled by, or is under common control with such Person, or (b) any Person who is a director or officer (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person described in clause (a) above. For purposes of this definition, “control” of a Person shall mean the power, direct or indirect, either to (x) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person, or (y) direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Agreement”: as defined in the preamble hereto.
“Amendment No. 1”: means Amendment No. 1 to the Credit Agreement dated as of December 21, 2020.
“Amendment No. 2”: means Amendment No. 2 to the Credit Agreement dated as of June 9, 2023.
“Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to Parent or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Discount”: as defined in subsection 4.23.
“Applicable Increased Term Loan Spread”: with respect to any then outstanding Initial Term Loans at the time of the provision of any new Tranche of Incremental Term Loans that is established pursuant to subsection 2.4 which new Tranche is subject to an Effective Yield that is greater than the Effective Yield applicable to such Initial Term Loans by more than 0.50%, the margin per annum (expressed as a percentage) mutually determined by the Administrative Agent and the Borrowers in good faith (and notified by the Administrative Agent to the Lenders) as the margin per annum required to cause the Effective Yield applicable to such then existing Initial Term Loans, after giving effect to any increase in the Eurodollar RateTerm SOFR or ABR floor applicable to such existing Initial Term Loans pursuant to subsection 2.4(a), to equal (a) the Effective Yield applicable to such new Tranche of Incremental Term Loans minus (b) 0.50%. Each mutual determination of the “Applicable Increased Term Loan Spread” by the Administrative Agent and the Borrowers shall be conclusive and binding on all Lenders absent manifest error.
“Applicable Margin”: a percentage per annum equal to, in the case of Initial Term Loans maintained as (i) EurodollarTerm SOFR Loans, 3.75% and (ii) ABR Loans, 2.75%.
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The Applicable Margin in respect of any tranche of Extended Term Loans shall be the applicable percentages per annum set forth in the relevant Extension Offer.
The Applicable Margins for any Tranche of Incremental Term Loans shall be (i) in the case of Incremental Term Loans added to an existing Tranche, the same as the Applicable Margins for such existing Tranche, and (ii) otherwise, as specified in the applicable Incremental Term Loan Commitment Agreement; provided that on and after the date of such incurrence of any Tranche of Incremental Term Loans which gives rise to a determination of a new Applicable Increased Term Loan Spread, the Applicable Margins for the Initial Term Loans shall be the higher of (x) the Applicable Increased Term Loan Spread for such Type of Initial Term Loans and (y) the Applicable Margin for such Type of Initial Term Loans as otherwise determined above in the absence of this clause (x).
“Applicable Parties”: as defined in subsection 10.12(c).
“Approved Electronic Platform”: as defined in subsection 10.12(a).
“Approved Fund”: as defined in subsection 11.6(c).
“Arranger” means Bank of America, N.A., Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Xxxxxx Xxxxxxx Senior Funding, Inc., JPMorgan Chase Bank, N.A. and Fifth Third Bank, each in its capacity as lead arranger and bookrunner.
“ASC”: the FASB Accounting Standards Codification.
“Asset Sale”: any sale, sale-leaseback, assignment, conveyance, transfer or other disposition by any Group Member of any of its property or assets (except sales, assignments, conveyances, transfers and other dispositions permitted by subsection 8.6 (other than clauses (e), (f), (g), (p), (w) and (y) thereof)).
“Assignee”: as defined in subsection 11.6(c).
“Assignment and Assumption”: an Assignment and Assumption substantially in the form of Exhibit D hereto or any other form reasonably approved by the Administrative Agent.
“Attributable Debt”: in respect of a sale and leaseback transactions permitted hereunder means, at the time of determination, the present value of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transactions permitted hereunder, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
“Available Amount”: as of any date of determination, an amount equal to the sum of:
(a) $100,000,000; plus
(b) the Cumulative Retained Excess Cash Flow Amount; plus
(c) 100% of the sum of (without duplication):
(i) the Net Proceeds received after the Effective Date and on or prior to such date (other than any Net Proceeds applied for Investments under subsection 8.7(t), Restricted Payments under subsection 8.8(c) or subsection 8.8(h) or prepayments of Indebtedness under subsection 8.15(b)(iii)) from any Capital Stock Issuance (other than any such issuance to a Group Member), including any sale of treasury Capital Stock, but excluding any issuance of Disqualified Stock; provided that the Net Proceeds thereof have been contributed by Parent in cash as common equity to New Holdings;
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(ii) the net cash proceeds received after the Effective Date and on or prior to such date from any capital contribution to New Holdings; provided that any such capital contribution is from a Person other than a Group Member;
(iii) [Reserved];
(iv) the net cash proceeds received after the Effective Date and on or prior to such date by a Borrower or any Restricted Subsidiary from the issuance of convertible or exchangeable debt securities that have been converted into or exchanged for Capital Stock of a Group Member (other than Disqualified Stock);
(v) the aggregate amount received in cash or Cash Equivalents after the Effective Date and on or prior to such date by a Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any existing joint venture that is not a Restricted Subsidiary, in each case, to the extent of the Investment in such joint venture (with the amount of such Investment being calculated in accordance with the last sentence of subsection 8.7);
(vi) the aggregate amount received in cash or Cash Equivalents after the Effective Date and on or prior to such date by New Holdings or any Restricted Subsidiary in connection with the sale, transfer or other disposition to a Person (other than a Group Member) of any Investment made in reliance on subsection 8.7(r) and repurchases and redemptions (other than by a Group Member) of such Investments from New Holdings or its Restricted Subsidiaries and repayments of loans or advances (other than by a Group Member) that constitute Investments made in reliance on subsection 8.7(r); provided that such amount shall not exceed the amount of such initial Investment made in reliance on subsection 8.7(r); and
(vii) any Declined Prepayment Amount;
(viii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Effective Date, the fair market value of the Investment in such Unrestricted Subsidiary (as determined by New Holdings in good faith or if such fair market value exceeds $30,000,000, in writing by an independent certified public accountant) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary (other than in each case to the extent that the designation of such Subsidiary as an Unrestricted Subsidiary constituted an Investment not made in reliance on the Available Amount);
minus
(d) the amount of any Investments made in reliance on subsection 8.7(r) prior to such date; minus
(e) the amount of any Restricted Payments made in reliance on subsection 8.8(i) prior to such date; minus
(f) the amount of any prepayments, repayments or redemptions of Subordinated Indebtedness made in reliance on subsection 8.15(v) prior to such date;.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”: with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America”: Bank of America, N.A. and its successors.
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“Bankruptcy Code”: the United States Bankruptcy Code, as now or hereafter in effect, or any successor statute.
“Bankruptcy Court”: the United States Bankruptcy Court for the Southern District of New York.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan”: any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations 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.”
“Benefited Lender”: as defined in subsection 11.7 hereof.
“Bethesda Property”: the real property owned as of the Effective Date by DC Radio Assets, LLC and located at 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX.
“Bethesda Property Priority Mortgage”: that certain Released Deposit Deed of Trust by DC Radio Assets, LLC to Xxxx Xxxxxx and Xxxx Xxxxx, as trustees, to be entered into by DC Radio Assets, LLC in connection with Amendment No. 12 to the Bethesda Property Purchase Agreement, securing DC Radio Assets, LLC’s repayment obligations of up to $10,000,000 in respect of amounts released from escrow to DC Radio Assets, LLC pursuant to the Bethesda Property Purchase Agreement, the form of which Released Deposit Deed of Trust is attached as Annex I to the Second Amendment.
“Bethesda Property Purchase Agreement”: that certain Purchase Agreement and Escrow Instructions, dated as of July 8, 2015, between DC Radio Assets, LLC and Toll Bros., Inc. for the purchase and sale of the Bethesda Property.
“BHC Act Affiliate”: as defined in subsection 11.21(b).
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower” or “Borrowers”: as defined in the preamble hereto.
“Borrower Agent”: as defined in the preamble hereto.
“Borrower Materials”: as defined in subsection 10.12(g).
“Borrowing”: the borrowing of the same Type of Term Loan pursuant to a single Tranche by the Borrowers from all the Lenders having Commitments with respect to such Tranche on a given date (or resulting from a conversion or conversions on such date), having, in the case of EurodollarTerm SOFR Loans, the same Interest Period; provided that any Incremental Term Loans incurred pursuant to subsection 2.1(b) shall be considered part of the related Borrowing of the then outstanding Tranche of Term Loans (if any) to which such Incremental Term Loans are added pursuant to, and in accordance with the requirements of, subsection 2.4(c).
“Breakage Event”: as defined in subsection 4.19 hereof.
“Broadcast Assets”: all or substantially all the assets used and useful in the operation of a Station pursuant to an FCC License, including such FCC License.
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“Broadcast Cash Flow”: for any period, Consolidated EBITDA for such period plus, to the extent deducted in calculating such Consolidated EBITDA, corporate level general and administrative expenses of the Borrowers and the Subsidiary Guarantors for such period (calculated in a manner consistent with the calculation of such expenses in the consolidated financial statements of New Holdings for such period).
“Broadcast License Subsidiary”: a wholly-owned Restricted Subsidiary of New Holdings that (a) owns or holds no material assets other than FCC Licenses and related rights and (b) has no material liabilities other than (i) trade payables incurred in the ordinary course of business and (ii) tax liabilities, other governmental charges and other liabilities incidental to the ownership or holding of such licenses and related rights.
“Business Acquisition”: any Permitted Acquisition and any other acquisition permitted under subsection 8.7 pursuant to which a Borrower or any of its Restricted Subsidiaries acquires any business, division or line of business or all or substantially all of the outstanding Capital Stock of any corporation or other entity (other than any director’s qualifying shares or any options for equity interests that cannot, as a matter of law, be cancelled, redeemed or otherwise extinguished without the express agreement of the holder thereof at or prior to acquisition) or any Station and Broadcast Assets related thereto.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in Dollars in the London interbank marketto close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located.
“Capital Expenditures”: for any period, all amounts (other than those arising from the acquisition or lease of businesses and assets which are permitted by subsection 8.7) which are set forth on the consolidated statement of cash flows of New Holdings for such period as “capital expenditures” in accordance with GAAP.
“Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. Notwithstanding anything else set forth herein, any lease that was or would have been treated as an operating lease under GAAP as in effect on December 31, 2018 that would become or be treated as a capital lease solely as a result of a change in GAAP after December 31, 2018 shall always be treated as an operating lease for all purposes and at all times under this Agreement.
“Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing; provided that any instrument evidencing Indebtedness convertible or exchangeable for Capital Stock shall not be deemed to be Capital Stock, unless and until any such instrument is so converted or exchanged.
“Capital Stock Issuance”: any issuance by Parent of its Capital Stock in a public or private offering.
“Cash Collateral” cash or deposit account balances pledged and deposited with or delivered to the Administrative Agent , for the benefit of the Secured Parties, as collateral for prepayment obligations, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent.
“Cash Equivalents”:
(a) United States dollars;
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(b) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;
(c) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $300,0000,000;
(d) repurchase obligations for underlying securities of the types described in clauses (b) and (c) entered into with any financial institution meeting the qualifications specified in clause (c) above and in Dollars;
(e) commercial paper rated at least P-2 by Xxxxx’x or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof, in Dollars;
(f) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Xxxxx’x or S&P, respectively (or, if at any time neither Xxxxx’x nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof and in Dollars;
(g) investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (f) above;
(h) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an investment grade rating from either Xxxxx’x or S&P with maturities of 24 months or less from the date of acquisition;
(i) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Xxxxx’x with maturities of 24 months or less from the date of acquisition and in each case in Dollars;
(j) Investments with weighted average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Xxxxx’x and in each case in Dollars; and
(k) credit card receivables and debit card receivables so long as such are considered cash equivalents under GAAP and are so reflected on New Holdings’ balance sheet.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than Dollars; provided that such amounts are converted into Dollars as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
“Cash Flow Revolving Credit Facility”: as defined in the definition of Permitted Revolving Credit Facility.
“Change in Control”: (a) the acquisition (whether through a merger transaction or otherwise) of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Effective Date), of Capital Stock representing more than 50% of the aggregate ordinary active voting power represented by the issued and outstanding Capital Stock of Parent, (b) the failure of Parent to own, directly and of record, 100% of the Capital Stock of Intermediate Holdings or (c) the failure of Intermediate Holdings to own, directly and of record, 100% of the Capital Stock of New Holdings.
“Change in Law”: with respect to any Lender, the adoption of any law, rule, regulation, policy, guideline or directive (whether or not having the force of law) or any change therein or in the interpretation or application thereof by any Governmental Authority, including the issuance of any final rule, regulation or guideline by any regulatory agency having jurisdiction over such Lender or, in the case of subsection 4.18, any corporation controlling such Lender; provided, however, that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States 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 or issued.
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“CME” means CME Group Benchmark Administration Limited.
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
“Commitment”: an Initial Term Loan Commitment or an Incremental Term Loan Commitment, as the context may require.
“Committed Loan Notice”: a notice of (a) a Borrowing, (b) a conversion of Term Loans from one Type to the other, or (d) a continuation of EurodollarTerm SOFR Loans, pursuant to subsection 2.3, which shall be substantially in the form of Exhibit C or such other form as may be approved by the Administrative Agent, including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent, appropriately completed and signed by a Responsible Officer of the Borrower Agent.
“Communications”: as defined in subsection 10.12(c).
“Communications Act”: the Communications Act of 1934, as amended, 47 U.S.C. §151 et seq.
“Conforming Changes”: as defined in subsection 4.15.
“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated”: as defined in subsection 1.2(f).
“Consolidated Current Assets”: at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) (other than trade assets, assets held for sale and barter assets) on a consolidated balance sheet of New Holdings and its Restricted Subsidiaries at such date.
“Consolidated Current Liabilities”: at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) (other than trade liabilities and barter liabilities) on a consolidated balance sheet of New Holdings and its Restricted Subsidiaries at such date, but excluding the current portion of any Funded Debt of New Holdings and its Restricted Subsidiaries.
“Consolidated Depreciation and Amortization Expense”: for any period of New Holdings and its Restricted Subsidiaries, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees and intangible assets of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA”: with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1) increased (without duplication) by:
(a) provision for taxes attributable to such Person based on income or profits or capital gains, including, without limitation, federal, state, non-U.S. franchise, excise, value added and similar taxes and foreign withholding taxes attributable to such Person paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax examinations, deducted (and not added back) in computing Consolidated Net Income; plus
(b) Consolidated Interest Expense of such Person for such period; plus
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(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(d) any fees, expenses or charges related to any Equity Issuance, Investment, acquisition, disposition, LMAs, recapitalization or the incurrence or repayment of Indebtedness permitted to be incurred by this Agreement (in each case including a refinancing thereof) (whether or not successful), including such fees, expenses or charges related to the Transactions; plus
(e) the amount of any (i) restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any restructuring costs incurred in connection with acquisitions, divestitures, mergers or consolidations after the Effective Date and (ii) up to $10,000,000 other non-recurring charges in any 12 month period, including any non-ordinary course legal expenses; plus
(f) any other non-cash charges, including asset impairments, any write offs or write downs and non-cash compensation expenses recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future period to the extent paid, but excluding from this proviso, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period); plus
(g) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus
(h) the amount of loss on sale of receivables and related assets whether to a Receivables Subsidiary in connection with a Receivables Facility permitted to be incurred pursuant to subclause 8.3(ff) and 8.3(gg) or otherwise; plus
(i) any costs or expense incurred by the IssuerNew Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Parent or the IssuerNew Holdings or net cash proceeds of an issuance of Equity Interest of Parent or the IssuerNew Holdings (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in the proviso set forth in Section 8.8(i) hereof; plus
(j) the amount of cost savings, operating expense reductions, other operating improvements and initiatives and synergies projected by New Holdings in good faith to be reasonably anticipated to be realizable within 18 months of the date of any Investment, acquisition, disposition, LMA, merger, consolidation, amalgamation or other action being given pro forma effect (which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) all steps have been taken for realizing such cost savings or all steps are expected to be taken within 18 months of the date of any Investment, acquisition, disposition, LMA, merger, consolidation, amalgamation or other action being given pro forma effect, (y) such cost savings are reasonably identifiable and factually supportable (in the good faith determination of New Holdings) and (z) the aggregate amount of cost savings, operating expense reductions, other operating improvements and initiatives and synergies added back pursuant to this clause (j) in any period of four consecutive fiscal quarters shall not exceed 20% of Consolidated EBITDA (prior to giving effect to such addbacks);
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; and
(3) increased or decreased by (without duplication):
(a) any net loss or gain resulting in such period from hedging arrangements and the application of Financial Accounting Codification No. 815-Derivatives and hedging arrangements; plus or minus, as applicable;
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(b) any net loss or gain resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from hedging arrangements for currency exchange risk).
For the purposes of calculating Consolidated EBITDA for any Test Period pursuant to any determination (i) if at any time during such Test Period or subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, New Holdings or any Restricted Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Test Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Test Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Test Period and (ii) if during such Test Period or subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, New Holdings or any Restricted Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Test Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Test Period. As used in this Agreement, “Material Acquisition” means the acquisition of any separate asset, business or lines of business for a purchase price (or in the case of a Permitted Asset Swap, the value of the assets subject to such Permitted Asset Swap) in excess of $25,000,000; and “Material Disposition” means any sale or other disposition of property or series of related sales or dispositions of property that yields gross proceeds to New Holdings or any of its Restricted Subsidiaries in excess of $25,000,000.
“Consolidated First Lien Debt”: at any date, Consolidated Total Indebtedness that is secured by a first priority Lien on any of the assets of New Holdings or any of its Restricted Subsidiaries (including, for the avoidance of doubt, the Existing ABL Facility, the Initial Term Loans and any Indebtedness secured by Liens on a pari passu basis with the Existing ABL Facility or the Initial Term Loans).
“Consolidated First Lien Net Leverage Ratio”: as of any date of determination, the ratio of (a) Consolidated First Lien Debt (provided that Indebtedness under clause (b) of the definition of Indebtedness shall only be included to the extent of any unreimbursed drawings under any letter of credit) less the aggregate amount of Unrestricted Cash up to a maximum amount of $150,000,000, in each case as of such date, to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date.
“Consolidated Interest Expense”: for any period of New Holdings and its Restricted Subsidiaries, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest expense (but excluding payment in kind interest and any non-cash interest expense attributable to the movement in the mark to market valuation of hedging arrangements or other derivative instruments pursuant to GAAP), (d) the interest component of Capital Lease Obligations, (e) imputed interest with respect to Attributable Debt and (f) net payments, if any, pursuant to interest rate hedging arrangements with respect to Indebtedness, and excluding, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility permitted to be incurred pursuant to subclause 8.3(ff) and 8.3(gg)); plus
(2) consolidated capitalized interest of such Person and such Restricted Subsidiaries for such period, whether paid or accrued; plus
(3) whether or not treated as interest expense in accordance with GAAP, all cash dividends or other distributions accrued (excluding dividends payable solely in Capital Stock or other equity interests (other than Disqualified Stock) of New Holdings) on any series of Disqualified Stock during such period; less
(4) interest income for such period.
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For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Consolidated Net Income”: with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication:
(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including expenses relating to (a) severance and relocation costs or (b) any rebranding or corporate name change) shall be excluded,
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles or implementation of new accounting standards during such period,
(3) any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by New Holdings, shall be excluded,
(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of New Holdings shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents) to New Holdings or a Restricted Subsidiary in respect of such period,
(6) the Net Income for such period of any Restricted Subsidiary that is not a Guarantor shall be excluded if the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of New Holdings will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash or Cash Equivalents) to New Holdings or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(7) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or hedging arrangements or other derivative instruments shall be excluded, and
(8) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with the Transactions and any acquisition, disposition, LMA, merger, amalgamation, consolidation, Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Capital Stock or other equity interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the IssueEffective Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded.
“Consolidated Net Secured Leverage Ratio”: as of any date of determination, the ratio of (1) Consolidated Total Indebtedness that is secured by a Lien as of such date (provided that Indebtedness under clause (b) of the definition of Indebtedness shall only be included to the extent of any unreimbursed drawings under any letter of credit) less the aggregate amount of Unrestricted Cash of the Borrowers and the Subsidiary Guarantors up to a maximum amount of $150,000,000, in each case as of such date, to (2) Consolidated EBITDA for the Test Period most recently ended prior to such date.
“Consolidated Total Assets”: as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of New Holdings and its Restricted Subsidiaries at such date.
“Consolidated Total Indebtedness”: as of any date of determination, all Indebtedness of New Holdings and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP;
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provided that Consolidated Total Indebtedness shall not include Indebtedness in respect of any letter of credit or bank guaranty except to the extent of any unreimbursed amounts thereunder.
“Consolidated Total Net Leverage Ratio”: as of any date of determination, the ratio of (a) Consolidated Total Indebtedness (provided that Indebtedness under clause (b) of the definition of Indebtedness shall only be included to the extent of any unreimbursed drawings under any letter of credit) less the aggregate amount of Unrestricted Cash of the Borrowers and the Subsidiary Guarantors up to a maximum amount of $150,000,000, in each case as of such date, to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date.
“Consolidated Working Capital”: at any date, the excess of Consolidated Current Assets on such date minus Consolidated Current Liabilities on such date.
“Contingent Obligation”: as to any Person, any obligation of such Person guaranteeing or in effect guaranteeing any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount (based on the maximum reasonably anticipated net liability in respect thereof as determined by New Holdings in good faith) of the primary obligation or portion thereof in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated net liability in respect thereof (assuming such Person is required to perform thereunder) as determined by New Holdings in good faith.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of the property owned by it is bound.
“Controlcontrol”: the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.
“Controllingcontrolling” and “Controlledcontrolled” have meanings correlative thereto.
“Control Agreement”: with respect to any deposit account or securities account, an agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable Uniform Commercial Code) over such account (and all assets on deposit therein or credited thereto) to the Administrative Agent, for the benefit of the Secured Parties.
“Covered Entity”: as defined in subsection 11.21(b).
“Covered Party”: as defined in subsection 11.21(a).
“Cumulative Retained Excess Cash Flow Amount”: at any date of determination, an amount equal to the aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for the Excess Cash Flow Periods ended on or prior to such date.
“Debtor Relief Laws”: the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, arrangement,
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compromise, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Declined Prepayment Amount”: as defined in subsection 4.6(g).
“Default”: any of the events specified in Section 9, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Default Right”: as defined in subsection 11.21(b).
“Designated Non-Cash Consideration”: non-cash consideration received by New Holdings or any of its Restricted Subsidiaries in connection with an sale or other disposition that is so designated as Designated Non-Cash Consideration pursuant to an officer’s certificate executed by a Responsible Officer, setting forth the fair market value of such Designated Non-Cash Consideration (as reasonably determined by the Borrower Agent) and the basis of such valuation; provided that the aggregate fair market value of all Designated Non-Cash Consideration that is at any time outstanding (less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on any such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) shall not exceed the greater of $100,000,000 and 4.5% of Consolidated Total Assets of New Holdings and its Restricted Subsidiaries.
“Discount Range”: as defined in subsection 4.23.
“Discounted Prepayment Option Notice”: as defined in subsection 4.23.
“Discounted Voluntary Prepayment”: as defined in subsection 4.23.
“Discounted Voluntary Prepayment Notice”: as defined in subsection 4.23.
“Disqualified Lenders”: those Persons whose primary business consists of broadcasting, local media and advertising who are identified in writing by the Borrower Agent to the Administrative Agent prior to the Effective Date, as such list may be supplemented after the Effective Date by written notice from the Borrower Agent to the Administrative Agent. For the avoidance of doubt (i) the Administrative Agent may, and shall be permitted to, upon request, provide such list of Disqualified Lenders to the Lenders and prospective Lenders, (ii) any addition to the list of Disqualified Lenders will not become effective until three Business Days after such addition is posted to the Lenders and (iii) no retroactive disqualification of the Lenders that later become Disqualified Lenders shall be permitted. Disqualified Xxxxxxx shall exclude any Person that the Borrower Agent has designated as no longer being a “Disqualified Lender” by written notice delivered to the Administrative Agent and the Lenders from time to time.
“Disqualified Stock”: with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the Maturity Date (or, if later, the maturity date of any Extended Term Loans); provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of Parent or its Restricted Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Parent or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided further, however, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Divestiture Trust”: a trust (a) created by or on behalf of New Holdings or any Restricted Subsidiary to hold and ultimately sell assets in conjunction with any Business Acquisition or any sale or
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other disposition pursuant to subsection 8.6(e) or (g) hereof to ensure compliance with the Communications Act or FCC rules and policies and (b) that is independently owned and managed by a Person unaffiliated with New Holdings or any Restricted Subsidiary.
“Division/Series Transaction”: with respect to any Loan Party and/or any of its Subsidiaries that is a limited liability company organized under the laws of the State of Delaware, that any such Person (a) divides into two or more Persons (whether or not the original Loan Party or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Subsidiary”: any Restricted Subsidiary of New Holdings other than a Foreign Subsidiary.
“ECF Percentage”: 50%; provided that, with respect to any fiscal year of the Borrowers, the ECF Percentage shall be reduced to 25% if the Consolidated Total Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 4.25 to 1.00; provided, further, that, with respect to any fiscal year of the Borrowers, the ECF Percentage shall be reduced to 0% if the Consolidated Total Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 3.75 to 1.00.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date”: the date on which each of the conditions precedent to the effectiveness of this Agreement contained in subsection 6.1 were satisfied, which date is September 26, 2019.
“Effective Date Subsidiary Borrower”: as defined in the preamble hereto.
“Effective Yield”: as to any Term Loan or other Indebtedness, the effective yield on such Term Loan or other Indebtedness as mutually determined by the Administrative Agent and New Holdings in good faith, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life to maturity of such Term Loan or other Indebtedness and (y) the four years following the date of incurrence thereof) payable generally to lenders providing such Term Loan or other Indebtedness, but excluding any arrangement, structuring, commitment, underwriting or other fees payable in connection therewith that are not generally shared with the relevant lenders, and customary consent fees paid generally to consenting lenders. Each mutual determination of the “Effective Yield” by the Administrative Agent and New Holdings shall be conclusive and binding on all Lenders absent manifest error.
“Eligible Assignee”: (a) a Lender, (b) a Lender Affiliate, (c) an Approved Fund and (d) any other Person (other than Parent or any Subsidiary thereof (except, solely in the case of an Open Market Purchase pursuant to subsection 11.6(h), New Holdings)) that meets the requirements to be an assignee under subsection 11.6(c) or 11.6(h); provided that “Eligible Assignee” shall not in any event include a
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natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural Persons).
“Environmental Laws”: any and all applicable Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning human health or the protection of the environment, including Materials of Environmental Concern, as now or may at any time hereafter be in effect.
“Equity Issuance”: any public or private sale of common stock or Preferred Stock of the Parent or New Holdings (excluding Disqualified Stock), or any cash common equity contribution to the Parent or New Holdings other than:
(1) public offerings with respect to any of the Parent’s or New Holding’s common stock registered on Form S-4 or Form S-8;
(2) issuances to any Subsidiary of the Parent or New Holdings; and
(3) Refunding Capital Stock.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate”: any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414 of the Code.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Eurodollar Base Rate Loans”: Term Loans the rate of interest applicable to which is based upon clause (b) of the definition of Eurodollar Rate.
“Eurodollar Lending Office”: the office of each Lender which shall be maintaining its Eurodollar Loans.
“Eurodollar Loans”: Term Loans the rate of interest applicable to which is based upon the Eurodollar Rate.
“Eurodollar Rate”:
(a) for any Interest Period with respect to a Eurodollar Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period) (“LIBOR”) as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
(b) for any interest calculation with respect to an ABR Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day; and
(c) if the Eurodollar Rate shall be less than 1.00% per annum, such rate shall be deemed 1.00% per annum for purposes of this Agreement.
“Event of Default”: any of the events specified in Section 9, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Excess Cash Flow”: for any fiscal year of New Holdings, the excess, if any, of (a) the sum, without duplication, of (i) consolidated net income of New Holdings for such period, adjusted to exclude any cash gains or losses attributable to any Asset Sale, (ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such consolidated net income, (iii) decreases in Consolidated Working Capital for such period, and (iv) the aggregate net amount of non-cash loss on the disposition of property by New Holdings and its Restricted Subsidiaries during such period (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such consolidated net income less (b) the sum, without duplication, of (i) the amount of all non-cash credits included in arriving at such consolidated net income, (ii) the aggregate amount actually paid by New Holdings and its Restricted Subsidiaries in cash during such period on account of Capital Expenditures, but only to the extent such cash payments were made from Internally Generated Cash, (iii) the aggregate
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amount of all regularly scheduled principal payments of Funded Debt (including the Term Loans) of New Holdings and its Restricted Subsidiaries made during such period from Internally Generated Cash (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), (iv) increases in Consolidated Working Capital for such period, (v) the aggregate net amount of non-cash gains on the disposition of property by New Holdings and its Restricted Subsidiaries during such period (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such consolidated net income, (vi) the aggregate amount actually paid by New Holdings and its Restricted Subsidiaries in cash during such period on account of professional fees that have not been deducted in the calculation of consolidated net income for such period, but only to the extent such cash payments were made from Internally Generated Cash, (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by New Holdings and its Restricted Subsidiaries during such period and financed with Internally Generated Cash that are made in connection with the prepayment of Indebtedness to the extent such payments are not expensed during such period or are not deducted in calculating consolidated net income, and (viii) the aggregate amount of taxes paid in cash during such period to the extent they exceed the amount of tax expense deducted in determining consolidated net income of New Holdings for such period (provided that Excess Cash Flow shall be increased in any future period to the extent taxes causing such excess are deducted from consolidated net income of New Holdings in such future period).
“Excess Cash Flow Application Date”: as defined in subsection 4.6(d).
“Excess Cash Flow Period”: each fiscal year of New Holdings, commencing with the fiscal year ending December 31, 2020.
“Excluded Accounts”: (a) any deposit account used solely for funding payroll or segregating payroll taxes or funding other employee wage or benefit payments in the ordinary course of business, (b) any fiduciary or trust account, (c) any restricted account listed on Schedule 1.1C to the extent such account (i) solely contains cash collateral securing letters of credit (other than letters of credit issued pursuant to a Permitted Revolving Credit Facility) otherwise permitted to be incurred pursuant to this Agreement, (ii) is a cash escrow account solely holding deposits with respect to a director and officer insurance policy, credit card program(s) and terminated lockbox arrangements (so long as such account does not receive a contribution by the Loan Parties of additional funds with respect to such terminated lockbox arrangements after the Effective Date), in each case as in effect on the Effective Date, (iii)[reserved] or (iv) in the case of the deposit account of Westwood One, LLC (f/k/a Westwood One, Inc.) (Account No. 8605513) maintained at Renasant Bank (f/k/a Brand Bank), solely to the extent such deposit account secures lease obligations and does not receive a contribution by the Loan Parties of additional funds after the Effective Date and (d) any other deposit account or securities account with an average monthly balance of not more than $500,000; provided that the aggregate average monthly balance of all deposit accounts and securities accounts constituting Excluded Accounts under this clause (d) shall not exceed $2,000,000.
“Excluded Taxes”: any of the following Taxes imposed on or with respect to the Administrative Agent or a Lender or required to be withheld or deducted from a payment to the Administrative Agent or a Lender, (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 the Administrative Agent or such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable 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, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan pursuant to a Requirement of Law in effect on the date on which (i) such Lender acquires such interest in the Term Loan (other than pursuant to an assignment request by the Borrower Agent under subsection 4.22(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to subsection 4.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to the Administrative Agent’s or such Xxxxxx’s failure to comply with subsection 4.20(g) and (d) any withholding Taxes imposed under FATCA.
“Existing ABL FaciityFacility”: the ABL Credit Agreement, dated as of August 17, 2018 (as amended, amended and restated, extended, renewed, modified or supplemented from time to time in accordance
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with the terms hereof and thereof), by and among Intermediate Holdings, New Holdings, the subsidiaries of New Holdings party thereto as borrowers, the lenders party thereto, and the ABL Agent.
“Existing Credit Agreement”: as defined in the definition of “Refinancing.”
“Extended Term Loans”: as defined in subsection 4.24(a).
“Extension”: as defined in subsection 4.24(a).
“Extension Offer”: as defined in subsection 4.24(a).
“FASB”: the Financial Accounting Standards Board.
“FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCC”: the Federal Communications Commission or any Governmental Authority succeeding to the Federal Communications Commission.
“FCC Licenses”: a license issued by the FCC under Part 73 of Title 47 of the Code of Federal Regulations and held by New Holdings or any Restricted Subsidiary.
“Fee Letter”: that certain Agency Fee Letter, dated as of the Effective Date, between New Holdings and the Administrative Agent.
“First Lien Notes”: the $500,000,000 aggregate principal amount of senior secured first-lien notes due 2026 issued by New Holdings.
“First Lien Notes Collateral Agent”: U.S. Bank Trust National Association, in its capacity as collateral agent for the Indenture Secured Parties (as defined in the Pari Passu Intercreditor Agreement), together with its successors in such capacity.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Lender”: any Lender that is not a U.S. Person.
“Foreign Subsidiary”: any Restricted Subsidiary of New Holdings that is organized under the laws of any jurisdiction outside the United States (within the meaning of Section 7701(a)(9) of the Code).
“FSHCO”: any Subsidiary of New Holdings that has no material assets other than the capital stock or other equity interests of one or more Foreign Subsidiaries that are “controlled foreign corporations” within the meaning of Section 957(a) of the Code.
“Funded Debt”: as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments
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in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrowers, Indebtedness in respect of the Term Loans and any Permitted Refinancings thereof.
“GAAP”: generally accepted accounting principles in the United States as in effect from time to time. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a material change in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrowers and the Required Lenders agree, upon the request of the Borrower Agent or the Administrative Agent, respectively, to enter into negotiations in order to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrowers’ financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. In the event a request for an amendment has been made pursuant to the prior sentence, until such time as such an amendment shall have been executed and delivered by the Borrowers, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.
“Gleiser Note”: the promissory note dated as of November 21, 2003, made by Xxxxxxx Communications, LLC, as the same may be amended or otherwise modified prior to and after the Effective Date.
“Governmental Authority”: any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government (including the FCC).
“Group Members”: collectively, New Holdings and any of its Restricted Subsidiaries.
“Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement executed and delivered by Intermediate Holdings, each Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit A (it being understood and agreed that, notwithstanding anything that may be to the contrary herein, the Guarantee and Collateral Agreement shall not require the pledge of (x) any of the outstanding Capital Stock of, or other equity interests in, any Subsidiary of New Holdings that is owned by a Foreign Subsidiary or FSHCO or (y) more than 66% of the outstanding voting stock of any “first-tier” Foreign Subsidiary or FSHCO).
“Guarantors”: as defined in the Guarantee and Collateral Agreement.
“Highest Lawful Ratio”: as defined in subsection 11.16.
“Impacted Loans”: as defined in subsection 4.15(a).
“Incremental Term Loan”: as defined in in subsection 2.1(b).
“Incremental Term Loan Borrowing Date”: with respect to each Incremental Term Loan, each date on which Incremental Term Loans are incurred pursuant to subsection 2.1(b), which date shall be the date of the effectiveness of the respective Incremental Term Loan Commitment Agreement pursuant to which such Incremental Term Loans are to be made.
“Incremental Term Loan Commitment”: for each Lender, any commitment to make Incremental Term Loans provided by such Lender pursuant to subsection 2.4 on a given Incremental Term Loan Borrowing Date, in such amount as agreed to by such Lender in the Incremental Term Loan Commitment Agreement delivered pursuant to subsection 2.4.
“Incremental Term Loan Commitment Agreement”: each Incremental Term Loan Commitment Agreement in the form of Exhibit N (appropriately completed and with such modifications (not
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inconsistent with subsection 2.4 or the other relevant provisions of this Agreement) as may be reasonably satisfactory to the Borrowers and the Administrative Agent) executed in accordance with subsection 2.4.
“Incremental Term Loan Commitment Requirements”: with respect to any provision of an Incremental Term Loan Commitment on a given Incremental Term Loan Borrowing Date, the satisfaction of each of the following conditions: (a) no Event of Default then exists or would result therefrom (provided that with respect to any Incremental Term Loan Commitment requested with respect to any Limited Condition Acquisition, such requirement shall be limited to the absence of an Event of Default pursuant to Sections 9(a) and (f) (it being understood that the Lenders providing such Incremental Term Loan Commitment may impose as a condition to funding any Incremental Term Loan Commitment the absence of any additional Events of Default, which may be waived at the discretion of such Lenders providing such Incremental Term Loan Commitment)); (b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the Incremental Term Loan Borrowing Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date and (z) the representations and warranties contained in clause (a) of subsection 5.1 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of subsection 7.1) (provided that with respect to any Incremental Term Loan Commitment requested with respect to any Limited Condition Acquisition, such requirement shall be limited to the truth and correctness of the Specified Representations (it being understood that the Lenders providing such Incremental Term Loan Commitment may impose as a condition to funding any Incremental Term Loan Commitment the truth and correctness of additional representations and warranties contained herein and in the other Loan Documents, which may be waived at the discretion of such Lenders providing such Incremental Term Loan Commitment)); (c) the delivery by the relevant Loan Parties of such technical amendments, modifications and/or supplements to the respective Security Documents as are reasonably requested by the Administrative Agent to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the relevant Security Documents, and each of the Lenders hereby agrees to, and authorizes the collateral agent to enter into, any such technical amendments, modifications or supplements and (d) the delivery by Parent to the Administrative Agent of an officer’s certificate executed by a Responsible Officer certifying as to compliance with preceding clauses (a) and (b).
“Incremental Term Loan Lender” as defined in subsection 2.4(b).
“Indebtedness”: of any Person, at any particular date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade payables or liabilities and deferred payment for services to employees or former employees incurred in the ordinary course of business and payable in accordance with customary practices and other deferred compensation arrangements), (b) all obligations with respect to all letters of credit issued for the account of such Person, (c) all liabilities (other than Lease Obligations) secured by any Lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof, (d) Capital Lease Obligations of such Person, (e) all indebtedness of such Person arising under bankers’ acceptance facilities, (f) all obligations of such Person in respect of Disqualified Stock and (g) for the purposes of Section 9(e) only, all obligations of such Person in respect of Swap Agreements; but, in each case, excluding (w) any net working capital adjustments or earnouts in connection with any permitted Investment under subsection 8.7 or disposition of assets permitted under subsection 8.6, (x) customer deposits and interest payable thereon in the ordinary course of business, (y) trade and other accounts and accrued expenses payable in the ordinary course of business in accordance with customary trade terms and in the case of both clauses (x) and (y) above, which are not overdue for a period of more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of such Person and (z) Indebtedness that has been defeased or satisfied and discharged in accordance with the terms of the documents governing such Indebtedness. The amount of any net obligations under any Swap Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (c) shall be
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deemed to be equal to the lesser of (i) the aggregate amount of the applicable liabilities and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities”: as defined in subsection 11.5(d).
“Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”: as defined in subsection 11.5(d).
“Information”: as defined in subsection 11.15.
“Initial Incremental Term Loan Maturity Date”: for any Tranche of Incremental Term Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the Incremental Term Loan Commitment Agreement relating thereto; provided that the initial final maturity date for all Incremental Term Loans of a given Tranche shall be the same date.
“Initial Term Loan”: the Term Loans made on the Effective Date pursuant to subsection 2.1(a).
“Initial Term Loan Commitment”: for each Lender as of the Effective Date, its commitment to make Initial Term Loans pursuant to subsection 2.1(a) on the Effective Date, in such amount as set forth opposite such Xxxxxx’s name on Schedule 1.1A hereto.
“Initial Tranche” as defined in the definition of the term “Tranche.”
“Insolvent” or “Insolvency”: with respect to a Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Interest Payment Date”: (a) as to any ABR Loan, the last dayBusiness Day of each March, June, September and December to occur while such Term Loan is outstanding and the final maturity date of such Term Loan, (b) as to any EurodollarTerm SOFR Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any EurodollarTerm SOFR Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Term Loan, the date of any repayment or prepayment made in respect thereof.
“Interest Period”: with respect to any EurodollarTerm SOFR Loan, the period commencing on the date such EurodollarTerm SOFR Loan is borrowed or the effective date of the most recent conversion or continuation of such EurodollarTerm SOFR Loan, as the case may be, and ending one, two, three or six months (in each case subject to subsection 4.15) thereafter as specified in subsection 2.1 or as selected by the Borrower Agent in its Committed Loan Notice, as the case may be, given with respect thereto; provided that the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which is not a WorkingBusiness Day, that Interest Period shall be extended to the next succeeding WorkingBusiness Day, unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding WorkingBusiness Day;
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(ii) the Borrower Agent may not select an Interest Period that would extend beyond the Maturity Date (or, with respect to any Extended Term Loan, the maturity date with respect thereto), or if the Maturity Date (or maturity date with respect to any Extended Term Loan) shall not be a WorkingBusiness Day, on the next preceding WorkingBusiness Day;
(iii) any Interest Period that begins on the last day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last WorkingBusiness Day of a calendar month; and
(v) the Borrower Agent shall select Interest Periods so as not to require a prepayment (to the extent practicable) or a scheduled payment of a EurodollarTerm SOFR Loan during an Interest Period for such EurodollarTerm SOFR Loan.
“Intermediate Holdings”: as defined in the preamble hereto.
“Internally Generated Cash”: cash generated from the operations of the business of New Holdings and its Restricted Subsidiaries; provided that, notwithstanding the forgoing, “Internally Generated Cash” shall not include (i) the proceeds of any long-term Indebtedness (other than revolving indebtedness), (ii) the proceeds of the issuance of any Capital Stock, (iii) the proceeds of any Reinvestment Deferred Amount or (iv) solely to the extent not increasing Consolidated Net Income of New Holdings during the applicable period, the proceeds of any insurance, indemnification or other payments from non-Loan Party Affiliates.
“Investments”: as defined in subsection 8.7. For purposes of the definition of “Unrestricted Subsidiary” and Section 8.8 hereof:
(1) “Investments” shall include the portion (proportionate to New Holdings’ direct or indirect equity interest in such Subsidiary) of the fair market value (as determined in good faith by New Holdings) of the net assets of a Subsidiary of New Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, as determined in good faith by New Holdings.
“IRS”: the U.S. Internal Revenue Service.
“Joinder Agreement”: a Joinder Agreement substantially in the form of Exhibit K hereto.
“Junior Representative” shall mean, with respect to any series of Permitted Junior Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Permitted Junior Debt is issued, incurred or otherwise obtained and each of their successors in such capacities.
“JV Holding Company”: a Borrower or Subsidiary Guarantor, (i) the sole assets of which are the equity interests of one or more joint ventures and (ii) that does not have any indebtedness or material liabilities, other than the Obligations.
“Latest Maturity Date” shall mean, at any time, the latest Maturity Date applicable to any Term Loan hereunder at such time, including the latest maturity date of any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan, in each case as extended in accordance with this Agreement from time to time.
“LCT Election”: as defined in subsection 1.3.
“LCT Test Date”: as defined in subsection 1.3.
“Lease Obligations”: of New Holdings and its Restricted Subsidiaries, as of the date of any determination thereof, the rental commitments of New Holdings and its Restricted Subsidiaries
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determined on a consolidated basis, if any, under leases for real and/or personal property (net of rental commitments from sub-leases thereof), excluding Capital Lease Obligations.
“Lender Affiliate”: (a) any Affiliate of any Lender, (b) any Person that is administered or managed by any Lender and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and (c) with respect to any Lender which is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such Lender or investment advisor.
“Lender Participation Notice”: as defined in subsection 4.23.
“Lender Party”: the Administrative Agent or any Lender.
“Lenders”: the financial institutions named on Schedule 1.1A (as amended or supplemented from time to time) and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a Lender.
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” shall mean any acquisition (including by way of merger) or similar Investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Liquidity”: at any time, the sum of (i) the aggregate amount of unrestricted cash of New Holdings and its Restricted Subsidiaries at such time and (ii) to the extent that any of the Borrowers is a party to a Permitted Revolving Credit Facility at such time, the aggregate amount available to be borrowed (subject to any borrowing base or similar limitations at such time) by such Borrowers on the undrawn commitments under such Permitted Revolving Credit Facility at such time.
“LMA”: an agreement pursuant to which the licensee of a radio station makes available, which may be for a fee and/or reimbursement of its expenses, airtime on its station to a party which supplies programming to be broadcast during that airtime, and may collect revenues from advertising aired during the programming.
“Loan Documents”: the collective reference to this Agreement, Amendment No. 1, Amendment No. 2, the Notes, the Guarantee and Collateral Agreement, the Fee Letter, any amendment or modification entered into in connection with any Extension, the Control Agreements, any Mortgage or other security document executed and delivered pursuant to the terms of subsection 7.10, each Incremental Term Loan Commitment Agreement, any intercreditor agreement (including the Permitted ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Intercreditor Agreement and any Permitted Cash Flow Revolver Intercreditor Agreement), if applicable, and any joinder to an intercreditor agreement (including the Permitted 2019 ABL Intercreditor Agreement Joinder), if applicable.
“Loan Parties”: Intermediate Holdings and each of its Subsidiaries that is a party, or which at any time becomes a party, to a Loan Document.
“Material Acquisition”: as defined in the definition of “Consolidated EBITDA.”
“Material Adverse Effect”: any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (a) the business, results of operations, property or financial condition of New Holdings and its Restricted Subsidiaries taken as a whole or (b)
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the validity or enforceability of any of the Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.
“Material Disposition”: as defined in the definition of “Consolidated EBITDA.”
“Material Real Property”: any fee interest in any real property located in the United States owned by a Loan Party and having a Real Property Value of a least $25,000,000; provided that in no event shall the Bethesda Property be considered Material Real Property.
“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in, or which form the basis of liability under, any Environmental Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde insulation, medical waste and radioactive materials.
“Maturity Date”: (a) with respect to any Initial Term Loans, the earlier of (i) March 31, 2026 or if such day is not a Business Day, the Business Day immediately preceding such date and (ii) any other date on which such Initial Term Loans are accelerated pursuant to Section 9 and (b) with respect to any Incremental Term Loans, the earlier of (i) the Initial Incremental Term Loan Maturity Date applicable thereto and (ii) any other date on which such Incremental Term Loans are accelerated pursuant to Section 9.
“Minimum Extension Condition”: as defined in subsection 4.24(b).
“Minimum Tranche Amount”: as defined in subsection 4.24(b).
“Xxxxx’x”: Xxxxx’x Investors Service, Inc. and any successor to its rating agency business.
“Mortgaged Properties”: (i) the Properties listed on Schedule 1.1B, as to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages and (ii) any other Property that is required to be subject to a Mortgage in favor of the Administrative Agent pursuant to subsection 7.10(c).
“Mortgages”: each of the mortgages and deeds of trust (if any) made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit L hereto or in any other form reasonably satisfactory to the Administrative Agent.
“Multiemployer Plan”: a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which a Loan Party or any ERISA Affiliate has (or within the past 6 years has had) an obligation to contribute pursuant to a collective bargaining agreement to which such Loan Party or ERISA Affiliate is a party.
“Net Income” means, with respect to any Person, the net income (loss) attributable to such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
“Net Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) actually received by any Group Member, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document), any reserves required to be maintained in connection therewith in accordance with GAAP and other customary fees, expenses and out-of-pocket closing costs actually incurred in connection therewith, any costs associated with unwinding any related Swap Agreement in connection with such transaction, and net of taxes paid or reasonably estimated to be payable as a result thereof (without taking into account any
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available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the proceeds thereof in the form of cash and Cash Equivalents received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
“New Holdings”: as defined in the preamble hereto.
“Non-Broadcast Assets”: as defined in subsection 8.6(e).
“Non-Significant Subsidiary”: at any time, any Restricted Subsidiary (other than any Broadcast License Subsidiary) which (i) at such time has total assets (including the total assets of any of its Subsidiaries), together with the total assets of any other Restricted Subsidiaries that are Non-Significant Subsidiaries, of less than 5% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) has accrued revenues (including the accrued revenues of any of its Subsidiaries), together with the accrued revenues of any other Restricted Subsidiaries that are Non-Significant Subsidiaries, for the most recently ended twelve-month period of less than 5% of the total revenues of New Holdings and its Restricted Subsidiaries.
“NotesNote”: as defined in subsection 4.2(e).
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the NYFRB on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the NYFRB Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the NYFRB Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent; provided, further, that if any of the aforesaid rates shall be less than 1.00% per annum, such rate shall be deemed to be 1.00% per annum for purposes of this Agreement.
“Obligations”: the unpaid principal of and interest on the Term Loans and all other obligations and liabilities of any Loan Party to the Administrative Agent or any Lender (including interest accruing after the maturity of the Term Loans and interest, fees and other amounts accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, related to any Borrower, whether or not a claim for post-filing or post-petition interest, fees and other amounts is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Term Loans, the other Loan Documents or any other document made, delivered or given in connection therewith, whether on account of principal, interest, reimbursement obligations, other fees, indemnities, costs, expenses (including all fees and disbursements of counsel to the Administrative Agent or any Lender) or otherwise.
“Offered Loans”: as defined in subsection 4.23.
“Open Market Purchase”: as defined in subsection 11.6(h).
“Other Connection Taxes”: with respect to the Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between the Administrative Agent or such Lender, as applicable, and the jurisdiction imposing such Tax (other than connections arising from the Administrative Agent or such Lender, as applicable, having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).
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“Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to subsection 4.22(b)).
“Parent”: as defined in the preamble hereto.
“Pari Passu Intercreditor Agreement” shall mean an intercreditor agreement among the Administrative Agent, the First Lien Notes Collateral Agent and one or more Pari Passu Representatives for holders of Permitted Pari Passu Notes (or Permitted Refinancing in respect thereof) providing that, inter alia, the Liens on the Collateral in favor of the Administrative Agent (for the benefit of the Secured Parties) shall be pari passu with such Liens in favor of the First Lien Notes Collateral Agent and/or the Pari Passu Representatives (for the benefit of the holders of Permitted Pari Passu Notes (or Permitted Refinancing in respect thereof)), as such intercreditor agreement may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof. The Pari Passu Intercreditor Agreement shall be in the form of Exhibit P or otherwise reasonably satisfactory to the Administrative Agent and the Borrower Agent.
“Pari Passu Representative” shall mean (i) with respect to the First Lien Notes, the First Lien Notes Collateral Agent or (ii) with respect to any series of Permitted Pari Passu Notes (or Permitted Refinancing in respect thereof), the trustee, collateral agent, security agent or similar agent under the indenture or other agreement pursuant to which such Permitted Pari Passu Notes (or Permitted Refinancing in respect thereof) are issued and each of their successors in such capacities.
“Participant Register”: as defined in subsection 11.6(b).
“Participants”: as defined in subsection 11.6(b).
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
“Permitted 2019 ABL Intercreditor Agreement Joinder”: the Intercreditor Agreement Xxxxxxx, dated as of the Effective Date, by and among the ABL Agent, the First Lien Notes Collateral Agent and the Administrative Agent.
“Permitted ABL Intercreditor Agreement”: the ABL/Term Loan Intercreditor Agreement, dated as of August 17, 2018 (as modified by that certain Intercreditor Agreement Xxxxxxx, dated as of June 26, 2019, and as further modified by the Permitted 2019 ABL Intercreditor Agreement Joinder, and as further amended, amended and restated, extended, renewed, modified or supplemented from time to time in accordance with the terms hereof and thereof), by and among the ABL Agent, the First Lien Notes Collateral Agent and Wilmington Trust, National Association, as administrative agent and collateral agent under the Existing Credit Agreement, or an intercreditor agreement which shall be in a substantially similar form or otherwise on terms and conditions reasonably satisfactory to the Administrative Agent.
“Permitted Acquisition”: any acquisition permitted by subsection 8.7(k).
“Permitted Asset Swap”: as defined in subsection 8.6(q).
“Permitted Cash Flow Revolver Intercreditor Agreement”: as defined in the definition of Permitted Revolving Credit Facility.
“Permitted Junior Debt” shall mean and include (a) any Permitted Junior Notes and (b) any Permitted Junior Loans.
“Permitted Junior Loan Documents” shall mean, after the execution and delivery thereof, each agreement, document or instrument relating to the incurrence of Permitted Junior Loans, in each case as
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the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.
“Permitted Junior Loans” shall mean any Indebtedness of Borrower Agent or any Restricted Subsidiary in the form of unsecured or secured loans; provided that (a) except as provided in clause (e) below, no such Indebtedness, to the extent incurred by any Loan Party, shall be secured by any asset of a Loan Party, (b) no such Indebtedness, to the extent incurred by any Loan Party, shall be guaranteed by any Person other than a Borrower or a Guarantor, (c) no such Indebtedness shall be subject to scheduled amortization or have a final maturity (excluding for this purpose, customary interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity requirements of this clause), in either case prior to the date occurring ninety-one (91) days following the Latest Maturity Date as of the date such Indebtedness was incurred, (d) any “asset sale” mandatory prepayment provision included in the agreement governing such Indebtedness, to the extent incurred by any Loan Party, shall provide that the Borrower Agent or its Subsidiary shall be permitted to repay obligations, and terminate commitments, under this Agreement before prepaying or offering to prepay such Indebtedness, (e) in the case of any such Indebtedness incurred by a Loan Party that is secured (i) such Indebtedness is secured only by assets comprising Collateral on a junior-lien basis relative to the Liens on such Collateral securing the Obligations of the Loan Parties, and not secured by any property or assets of the Borrower Agent or any of its Subsidiaries other than the Collateral, (ii) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are necessary to reflect the differing lien priorities and any other changes reasonably satisfactory to the Administrative Agent) as determined by the Borrower Agent in good faith and (iii) a Junior Representative acting on behalf of the holders of such Indebtedness shall have become party to the Additional Intercreditor Agreement; provided that if such Indebtedness is the initial incurrence of Permitted Junior Debt that is secured by assets of a Borrower or any other Loan Party, then the Borrowers, the Guarantors, the Administrative Agent and the Junior Representative for such Indebtedness shall have executed and delivered the Additional Intercreditor Agreement and (f) to the extent incurred by any Loan Party, the covenants and events of default, taken as a whole, shall be no more onerous in any material respect than the related provisions contained in this Agreement; provided that (x) any such terms may be more onerous to the extent they take effect after the Latest Maturity Date as of the date such Indebtedness was incurred, and (y) in the event that any agreement evidencing such Indebtedness contains financial maintenance covenants, the Borrowers shall have offered in good faith to enter into an amendment to this Agreement to add any such financial covenants as are not then contained in this Agreement (provided that a certificate of a Responsible Officer of Borrower Agent delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with, to the extent requested by the Administrative Agent, a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrowers have determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (f), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower Agent of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
“Permitted Junior Notes” shall mean any Indebtedness of Borrower Agent or any Restricted Subsidiary in the form of unsecured or secured notes and incurred pursuant to one or more issuances of such notes; provided that (a) except as provided in clause (g) below, no such Indebtedness, to the extent incurred by any Loan Party, shall be secured by any asset of Borrower Agent or any of its Subsidiaries, (b) no such Indebtedness, to the extent incurred by any Loan Party, shall be guaranteed by any Person other than a Borrower or a Subsidiary Guarantor, (c) no such Indebtedness shall be subject to scheduled amortization or have a final maturity, in either case prior to the date occurring ninety-one (91) days following the Latest Maturity Date as of the date such Indebtedness was incurred, (d) any “asset sale” offer to purchase covenant included in the indenture governing such Indebtedness, to the extent incurred by any Loan Party, shall provide that Parent or its Subsidiary shall be permitted to repay obligations, and terminate commitments, under this Agreement before offering to purchase such Indebtedness, (e) the indenture governing such Indebtedness shall not include any financial maintenance covenants, (f) the “default to other indebtedness” event of default contained in the indenture governing such Indebtedness shall provide for a “cross-acceleration” or a “cross-acceleration” and “cross-payment default” rather than a “cross-default,” (g) in the case of any such Indebtedness incurred by a Loan Party that is secured, (i) such Indebtedness is secured only by assets comprising Collateral on a junior-lien basis relative to the
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Liens on such Collateral securing the Obligations of the Loan Parties, and not secured by any property or assets of the Parent or any of its Subsidiaries other than the Collateral, (ii) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are necessary to reflect the differing lien priorities and any other changes reasonably satisfactory to the Administrative Agent) as determined by the Borrower Agent in good faith and (iii) a Junior Representative acting on behalf of the holders of such Indebtedness shall have become party to the Additional Intercreditor Agreement; provided that if such Indebtedness is the initial incurrence of Permitted Junior Debt that is secured by assets of a Borrower or any other Loan Party, then the Borrowers, the Guarantors, the Administrative Agent and the Junior Representative for such Indebtedness shall have executed and delivered the Additional Intercreditor Agreement, and (h) to the extent incurred by any Loan Party, the negative covenants and events of default, taken as a whole, contained in the indenture governing such Indebtedness shall not be more onerous in any material respect than those contained in the corresponding provisions of this Agreement; provided that any such terms may be more onerous to the extent they take effect after the Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of Borrower Agent delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with, to the extent requested by the Administrative Agent, a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrowers have determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (h), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower Agent of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
“Permitted Junior Notes Documents” shall mean, after the execution and delivery thereof, each Permitted Junior Notes Indenture, and the Permitted Junior Notes, in each case as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.
“Permitted Junior Notes Indenture” shall mean any indenture or similar agreement entered into in connection with the issuance of Permitted Junior Notes, as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.
“Permitted Pari Passu Notes” shall mean any Indebtedness of Borrower Agent or any Restricted Subsidiary in the form of notes and incurred pursuant to one or more issuances of such notes; provided that (a) no such Indebtedness shall be guaranteed by any Person other than a Loan Party, (b) no such Indebtedness shall be subject to scheduled amortization or have a final maturity, in either case prior to the Latest Maturity Date as of the date such Indebtedness was incurred, (c) any “asset sale” offer to purchase covenant included in the indenture governing such Indebtedness, to the extent incurred by any Loan Party, shall provide that the Borrower Agent or its Subsidiary shall be permitted to repay obligations, and terminate commitments, under this Agreement on a pro rata or greater basis with such Indebtedness from asset sale proceeds, (d) the indenture governing such Indebtedness shall not include any financial maintenance covenants, (e) the “default to other indebtedness” event of default contained in the indenture governing such Indebtedness shall provide for a “cross-acceleration” or a “cross-acceleration” and “cross-payment default” rather than a “cross-default,” (f) (i) such Indebtedness is secured only by assets comprising Collateral on a pari passu basis relative to the Liens on such Collateral securing the Obligations of the Loan Parties, and not secured by any property or assets of a Borrower or any of its Subsidiaries other than the Collateral, (ii) the security agreements relating to such Indebtedness are substantially the same as the Security Documents as determined by the Borrower Agent in good faith (or, if not substantially the same, with such differences as are reasonably satisfactory to the Administrative Agent) and (iii) a Pari Passu Representative acting on behalf of the holders of such Indebtedness shall have become party to the Pari Passu Intercreditor Agreement; provided that if such Indebtedness is the initial issue of Permitted Pari Passu Notes by a Borrower, then the Borrowers, the Guarantors, the Administrative Agent and the Pari Passu Representative for such Indebtedness shall have executed and delivered the Pari Passu Intercreditor Agreement, and (g) the negative covenants and events of defaults, taken as a whole, contained in the indenture governing such Indebtedness shall not be more onerous in any material respect than those contained in the corresponding provisions in this Agreement; provided that any such terms may be more onerous to the extent they take effect after the Latest Maturity Date as of
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the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of the Borrower Agent delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with, to the extent requested by the Administrative Agent, a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrowers have determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (g), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower Agent of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
“Permitted Pari Passu Notes Indenture” shall mean any indenture or similar agreement entered into in connection with the issuance of Permitted Pari Passu Notes, as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.
“Permitted Refinancing”: with respect to all or any portion of any Indebtedness, any modification, refinancing, refunding, renewal or extension of such Indebtedness; provided that (i) the principal amount thereof does not exceed the principal amount of the Indebtedness so modified, refinanced, refunded, renewed or extended (plus any accrued but unpaid interest, fees and redemption premiums payable by the terms of such Indebtedness thereon and reasonable expenses incurred in connection therewith), (ii) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to subsection 8.2(j), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (iii) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable on the whole to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended (as determined in good faith by New Holdings), (iv) the terms and conditions of any such modified, refinanced, refunded, renewed or extended Indebtedness are market terms on the date of issuance (as determined in good faith by New Holdings) or, if not on market terms on the date of issuance, are not, taken as a whole, materially more restrictive than the covenants and events of default contained in this Agreement (as determined in good faith by New Holdings), (v) such modification, refinancing, refunding, renewal or extension shall not be incurred by a Person who is not a Borrower or Subsidiary Guarantor (unless such Indebtedness being refinanced was originally incurred or guaranteed by a Person who was not a Borrower or Subsidiary Guarantor), (vi) to the extent that the Liens securing the Indebtedness being refinanced are subordinated to the Liens securing the Obligations, any Lien securing such refinancing Indebtedness is subordinated to the Liens securing the Obligations on terms at least as favorable (when taken as a whole) to the Lenders as those contained in the applicable subordination language (if any) for the Indebtedness being refinanced (as determined in good faith by New Holdings), (vii) to the extent that the Liens securing the Indebtedness being refinanced are pari passu to the Liens securing the Obligations, any Lien securing such refinancing Indebtedness is pari passu with or subordinated to the Liens securing the Obligations on terms at least as favorable (when taken as a whole) to the Lenders as those contained in the applicable subordination language (if any) for the Indebtedness being refinanced (as determined in good faith by New Holdings), (viii) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to subsection 8.2(j), such Permitted Refinancing shall not be secured by any assets or property of a Borrower or any Restricted Subsidiary that does not secure the Indebtedness being refinanced (plus improvements and accessions thereon and proceeds in respect thereof) and (x) if the Indebtedness being modified, refinanced, refunded, renewed or extended is unsecured, such modified, refinanced, refunded, renewed or extended Indebtedness shall also be unsecured.
“Permitted Revolving Credit Facility”: (a) the Existing ABL Facility and (b) a revolving credit facility which (i) is not secured by any assets or property that is not Collateral, (ii) does not have any obligors that are not Loan Parties, (iii) if an asset-based revolving credit facility (an “ABL Facility”), is at all times subject to a Permitted ABL Intercreditor Agreement and (iv) if a cash-flow revolving credit facility (a “Cash Flow Revolving Credit Facility”), is at all times subject to an intercreditor agreement which shall be customary for transactions of this type and otherwise on terms and conditions reasonably
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satisfactory to the Administrative Agent (such intercreditor agreement, a “Permitted Cash Flow Revolver Intercreditor Agreement”) pursuant to which the lenders party to any such Cash Flow Revolving Credit Facility (or an agent on their behalf) shall have a Lien on the Collateral that is pari passu with the Lien of the Administrative Agent, for the benefit of the Secured Parties, on the Collateral.
“Person”: an individual, partnership, corporation, business trust, joint stock company, trust, limited liability company, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Plan”: any employee pension benefit plan (as defined in Section 3(2) of ERISA, but excluding any Multiemployer Plan) in respect of which any Loan Party or any ERISA Affiliate is, or if such Plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be, an “employer” (as defined in Section 3(5) of ERISA).
“Plan Asset Regulations”: 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Plan of Reorganization”: as defined in subsection 11.6(i)(iii).
“Pledged Stock”: as defined in the Guarantee and Collateral Agreement.
“Preferred Stock”: any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.
“primary obligations”: as defined in the definition of “Contingent Obligation.”
“primary obligor”: as defined in the definition of “Contingent Obligation.”
“Prime Rate”: the rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“Prohibited Transaction”: as defined in Section 406 of ERISA and Section 4975(f)(3) of the Code.
“Projections”: as defined in subsection 5.17.
“Properties”: each parcel of real property currently or previously owned or operated by any Group Member.
“Proposed Discounted Prepayment Amount”: as defined in subsection 4.23.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender”: as defined in subsection 10.12(g).
“QFC”: as defined in subsection 11.21(b).
“QFC Credit Support”: as defined in subsection 11.21.
“Qualifying Lender”: as defined in subsection 4.23.
“Qualifying Loan”: as defined in subsection 4.23.
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“Rating Agencies”: Xxxxx’x and S&P, or if Xxxxx’x or S&P or both shall not make a rating on the Term Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower Agent which shall be substituted for Xxxxx’x or S&P or both, as the case may be.
“Ratio-Based Incremental Facility” as defined in subsection 2.4(a).
“Real Property Value”: with (a) respect to any real property owned by a Loan Party on the Effective Date, the value of such real property (together with improvements thereon) on the Effective Date and (b) with respect to any real property acquired by a Loan Party after the Effective Date, the value of such real property (together with improvements thereon) at the time of the acquisition of such real property by such Loan Party, in each case as reasonably determined by New Holdings in good faith.
“Receivables Facility”: any of one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to New Holdings and its Restricted Subsidiaries (other than one or more Receivables Subsidiaries) pursuant to which New Holdings or any Restricted Subsidiary sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
“Receivables Subsidiary”: any Restricted Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto; provided that each Receivables Subsidiary shall at all times be 100% owned by a Loan Party.
“Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member.
“Refinancing”: the repayment and discharge of all obligations under that certain Credit Agreement, dated as of June 4, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the date hereof, the “Existing Credit Agreement”), by and among New Holdings, the Effective Date Subsidiary Borrower, Parent, the lenders from time to time party thereto and Wilmington Trust, National Association, as administrative agent for the lenders from time to time party thereto, and the termination of all security interests and guarantees related thereto.
“Refinancing Note Holder”: as defined in subsection 4.26(b).
“Refinancing Notes”: as defined in subsection 4.26(a).
“Refinancing Term Loan Amendment”: as defined in subsection 4.26(c).
“Refinancing Term Loan Lender”: as defined in subsection 4.26(b).
“Refinancing Term Loans”: as defined in subsection 4.26(a).
“Refunding Capital Stock”: the redemption, repurchase, retirement or other acquisition of any Capital Stock or other equity interests of the Parent or New Holdings, or of Subordinated Indebtedness of the Parent or New Holdings or any Guarantor, in exchange for, or out of the proceeds of the substantially concurrent issuance or sale (other than to a Subsidiary or to an employee stock ownership plan or any trust established by New Holdings) of, Capital Stock or other equity interests of the Parent or New Holdings (other than Disqualified Stock).
“Register”: as defined in subsection 11.6(d).
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“Regulation U”: Regulation U of the Board, as from time to time in effect.
“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate Net Proceeds received by New Holdings or any Restricted Subsidiary in connection therewith that are not applied to prepay the Term Loans pursuant to subsection 4.6(b).
“Reinvestment Event”: any Recovery Event or any Asset Sale in respect of which the Borrowers have exercised their Reinvestment Rights in accordance with subsection 4.6(b).
“Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire, improve or repair assets useful in the business of the Borrowers.
“Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier of (a) the date occurring twelve months after such Reinvestment Event (or, if a Borrower enters into a legally binding commitment to reinvest the Net Proceeds from such Reinvestment Event within such 12-month period, the date that is 180 days after entry into such legally binding commitment) and (b) the date on which the Borrowers shall have conclusively determined not to acquire, improve or repair assets useful in their business with all or any portion of the relevant Reinvestment Deferred Amount.
“Reinvestment Rights”: if no Event of Default has occurred and is continuing at the time of receipt of Net Proceeds of a Reinvestment Event, except as provided in subsection 8.10, the right of the Borrowers (directly or indirectly through a Subsidiary Guarantor) to use all or a specified portion of the Net Proceeds of a Recovery Event or an Asset Sale to acquire, improve or repair assets useful in their business.
“Related Parties”: with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents, representatives and advisors of such Person and such Person’s Affiliates.
“Relevant Governmental Body”: the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.
“Reorganization”: with respect to a Multiemployer Plan, the condition that such plan is in reorganization as such term is used in Section 4241 of ERISA.
“Replaced Term Loans”: as defined in subsection 11.1.
“Replacement Term Loans”: as defined in subsection 11.1.
“Reportable Event”: any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Single Employer Plan, other than those events as to which the 30-day notice period has been waived pursuant to applicable regulations as in effect on the Effective Date.
“Repricing Transaction” shall mean (a) the Incurrence by any Borrower of any term loans (including, without limitation, any new or additional Term Loans under this Agreement, whether Incurred directly or by way of the conversion of Initial Term Loans into a new class of Replacement Term Loans under this Agreement) that is broadly marketed or syndicated to banks, financial institutions and/or other institutional lenders or investors in financings similar to the Initial Term Loans provided for in this Agreement (i) having an Effective Yield that is less than the Effective Yield for the applicable Initial Term Loan class, but excluding Indebtedness Incurred in connection with a Transformative Acquisition and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Initial Term Loans or (b) any effective reduction in the Effective Yield for the applicable Initial Term Loan class (e.g., by way of amendment, waiver or
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otherwise), except for a reduction in connection with a Transformative Acquisition and, in the case of any transaction under either clause (a) or clause (b) above, the primary purpose of which is to lower the Effective Yield on any Initial Term Loans. Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding Initial Term Loans.
“Required Lenders”: at a particular time Lenders that hold more than 50% of the aggregate then outstanding principal amount of the Term Loans.
“Requirement of Law”: as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation (including Environmental Laws) or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resignation Effective Date”: as defined in subsection 10.6(a).
“Responsible Officer”: the chief executive officer or the chief operating officer of New Holdings or, with respect to financial matters, the chief financial officer of New Holdings.
“Restricted Payments”: as defined in subsection 8.8.
“Restricted Subsidiary”: at any time, each direct or indirect Subsidiary of New Holdings (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”
“Retained Percentage”: with respect to any Excess Cash Flow Period, (a) 100% minus (b) the ECF Percentage with respect to such Excess Cash Flow Period.
“S&P”: Standard & Poor’s Financial Services LLC and any successor to its rating agency business.
“Sanctions”: economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.
“Sanctioned Country”: at any time, a country or territory which is the subject or target of any Sanctions.
“Sanctioned Person”: at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.
“Sanctions”: economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.
“Scheduled Unavailability Date”: as defined in subsection 4.15(c)(ii).
“SEC”: the Securities and Exchange Commission of the United State of America.
“SEC Filings”: any public filings that Parent has made on form 10K, 10Q or 8K pursuant to the U.S. federal securities statutes, rules or regulations prior to the Effective Date.
“Secured Parties: as defined in the Guarantee and Collateral Agreement.
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“Securitization Repurchase Obligation”: any obligation of a seller of accounts receivable in a Receivables Facility to repurchase accounts receivable arising as a result of a breach of a representation, warranty, covenant or indemnity made or given in connection with a Receivables Facility, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by any failure to take action by or any other event relating to the seller.
“Security Documents”: the collective reference to the Guarantee and Collateral Agreement, the Mortgages, the Control Agreements and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.
“Single Employer Plan”: any Plan subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
“SOFR”: means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment”: with respect to Term SOFR, means 0.11448% (11.448 basis points) for an Interest Period of one-month’s duration, 0.26161% (26.161 basis points) for an Interest Period of three-month’s duration, and 0.42826% (42.826 basis points) for an Interest Period of six-months’ duration.
“SOFR-Based Rate”: SOFR or Term SOFR.
“Solvent”: when used with respect to any Person, means that, as of any date of determination, (a) the amount of the present fair saleable value of the assets of such Person will, as of such date, exceed the amount of all liabilities of such Person, contingent or otherwise, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim,” (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) “present fair saleable value” and “liabilities of such Person, contingent or otherwise” shall, in each case, be determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors.
“SOFR”: with respect to any day, the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) and, in each case, that has been selected or recommended by the Relevant Governmental Body.
“SOFR-Based Rate”: SOFR or Term SOFR.
“Specified Representations” shall mean the representations and warranties of the Loan Parties set forth in subsections 5.3, 5.5 (solely with respect to the certificate of incorporation and by-laws or other organizational or governing documents of such Person), 5.7, 5.8, 5.18 (solely with respect to creation of a security interest and, with respect to perfection of a security interest), 5.19, 5.21 and 5.22.
“Station”: a broadcast radio station operated pursuant to an FCC License.
“Subordinated Indebtedness”: any Indebtedness of New Holdings or its Restricted Subsidiaries which is subordinated in right of payment to the Obligations.
“Subsequent Transaction”: as defined in subsection 1.3.
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“Subsidiary”: as to any Person, a corporation, partnership or other entity of which shares of Capital Stock or other equity interests having ordinary voting power (other than Capital Stock or other equity interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly, or the management of which is otherwise controlled, directly or indirectly, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of New Holdings.
“Subsidiary Guarantor”: any Restricted Subsidiary which is designated as a “Subsidiary Guarantor” pursuant to subsection 7.10(a) and enters into the Guarantee and Collateral Agreement pursuant to subsection 7.10(a) (it being understood and agreed that no Foreign Subsidiary, FSHCO, Non-Significant Subsidiary, Broadcast License Subsidiary or Receivables Subsidiary of New Holdings shall, in any case, be designated as a “Subsidiary Guarantor” or enter into the Guarantee and Collateral Agreement pursuant to subsection 7.10(a)).
“Successor Rate”: as defined in subsection 4.15(c).
“Supported QFC”: as defined in subsection 11.21.
“Swap Agreement”: any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of New Holdings or any of its Restricted Subsidiaries shall be a “Swap Agreement.”
“Swap Termination Value”: in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, 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 Swap Agreement, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate of a Lender).
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan”: the Initial Term Loans and each Incremental Term Loan.
“Term Loan Percentage”: as to any Lender, the percentage which such Lender’s Term Loan constitutes of the aggregate then outstanding principal amount of Term Loans.
“Term SOFR”: the forward-looking term rate for any period that is approximately (as determined by the Administrative Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion. means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
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(b) for any interest calculation with respect to a ABR Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such date with a term of one month commencing that day; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such term;
provided that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than 1.00%, Term SOFR shall be deemed 1.00% for purposes of this Agreement.
“Term SOFR Loans”: Term Loans the rate of interest applicable to which is based upon the Term SOFR.
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Test Period”: at any time the most recent period of four consecutive fiscal quarters of the Borrowers ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each quarter or fiscal year in such period were required to have been delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable.
“Trade Date”: as defined in subsection 11.6(i)(i).
“Tranche”: the respective facilities and commitments utilized in making Initial Term Loans or Incremental Term Loans made pursuant to one or more tranches designated pursuant to the respective Incremental Term Loan Commitment Agreements in accordance with the relevant requirements specified in subsection 2.4 (collectively, the “Initial Tranches” and, each, an “Initial Tranche”), and after giving effect to the Extended Term Loans pursuant to subsection 4.24, shall include any group of Extended Term Loans, extended, directly or indirectly, from the same Initial Tranche and having the same Maturity Date, interest rate and fees; provided that only in the circumstances contemplated by subsection 2.4(c), Incremental Term Loans may be made part of a then existing Tranche of Term Loans.
“Transactions”: the entering into of the Loan Documents and the borrowing of the Initial Term Loans hereunder, the payments of fees, commissions and expenses in connection with each of the foregoing and the consummation of the Refinancing.
“Transferee”: as defined in subsection 11.6(e).
“Transformative Acquisition” shall mean any acquisition by New Holdings or any of its Restricted Subsidiaries that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition, would not provide New Holdings and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by New Holdings acting in good faith.
“Type”: as to any Term Loan, its nature as an ABR Loan or a EurodollarTerm SOFR Loan.
“U.S. Borrower”: any Borrower that is a U.S. Person.
“U.S. Person”: any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“UCC”: the Uniform Commercial Code as in effect, from time to time, in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security
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interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Unrestricted Cash”: at any time, the aggregate amount of unrestricted cash and Cash Equivalents of the Borrowers and the Subsidiary Guarantors at such time that are subject to a first priority perfected Lien in favor of the Administrative Agent (or, in the event such unrestricted cash and Cash Equivalents constitute ABL Priority Collateral under an ABL Facility to which the applicable Borrower or Subsidiary Guarantor is a party to at such time, a second priority perfected Lien in favor of the Administrative Agent).
“Unrestricted Subsidiary” shall mean any Subsidiary of New Holdings designated by the board of directors of New Holdings as an Unrestricted Subsidiary pursuant to Section 7.16 subsequent to the Effective Date, in each case, except to the extent redesignated as a Restricted Subsidiary in accordance with such Section 7.16.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Special Resolution Regimes”: as defined in subsection 11.21.
“U.S. Tax Compliance Certificate”: as defined in subsection 4.20(g)(ii)(B)(3).
“Withdrawal Liability”: liability to a Multiemployer Plan as a result of a complete withdrawal or a partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
“Working Day”: any Business Day which is a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.
“Write-Down and Conversion Powers”: with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2 Other Definitional Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in the Notes, any other Loan Document and any certificate or other document made or delivered pursuant hereto, accounting terms relating to New Holdings and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1 to the extent not defined, shall have the respective meanings given to them under GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under ASC 825 “Financial Instruments” (or any other ASC having a similar result or effect) to value any Indebtedness or other liabilities of Intermediate Holdings, New Holdings or any Subsidiary at “fair value,” as defined therein.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified.
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(c) The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (ii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (iv) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.
(d) The meanings given to terms defined herein shall be equally applicable to the singular and plural forms of such terms.
(e) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
(f) Unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with New Holdings and its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
1.3 Limited Condition Acquisition. Notwithstanding anything to the contrary in this Agreement, in connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio (and, for the avoidance of doubt, any financial ratio set forth in subsection 2.4 (a)); or
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or Consolidated Total Assets); or
(iii) determining other compliance with this Agreement (including the accuracy of any representation and warranty or the determination that no Default or Event of Default has occurred, is continuing or would result therefrom);
in each case, at the option of Borrower Agent (Borrower Agent’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be made (1) in the case of any acquisition (including by way of merger) or similar Investment (including the assumption or incurrence of Indebtedness under any incremental facility in connection therewith), at the time of (or on the basis of the financial statements required to be delivered pursuant to subsection 7.1(a) or (b) for the most recently ended Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition or Investment or (y) the consummation of such acquisition or Investment, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements required to be delivered pursuant to subsection 7.1(a) or (b) for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any voluntary or optional payment or prepayment on or redemption or acquisition for value of any Indebtedness subject to subsection 8.15, at the time of (or on the basis of the financial statements required to be delivered pursuant to subsection 7.1(a) or (b) for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such payment or prepayment or redemption
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or acquisition of such Indebtedness or (y) the making of such voluntary or optional payment or prepayment on or redemption or acquisition for value of any Indebtedness (the “LCT Test Date”), and if, for the Limited Condition Acquisition (and the other transactions to be entered into in connection therewith), New Holdings or any of the Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test, basket availability or other compliance with this Agreement (on a pro forma basis after giving effect to such Limited Condition Acquisition), such ratio, test, basket availability or other compliance with this Agreement shall be deemed to have been complied with. For the avoidance of doubt, if Parent has made an LCT Election and any of the ratios, tests, basket availability or other compliance with this Agreement for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test, basket availability or other compliance with this Agreement, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets of New Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such ratios, tests, basket availability or other compliance with this Agreement will not be deemed to have failed to have been complied with as a result of such fluctuations. If Parent has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test, basket availability or other compliance with this Agreement, availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment under subsection 8.7, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of New Holdings or the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement or irrevocable notice for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test, basket availability or other compliance with this Agreement shall be required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
1.4 Interest Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate”any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for comparable or successor rate thereto to any of such rate (including, without limitation, any LIBOR Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
SECTION 2. AMOUNT AND TERMS OF THE TERM LOAN COMMITMENTS
2.1 Term Loans. (a) Subject to the terms and conditions set forth herein, each Lender with an Initial Term Loan Commitment on the Effective Date severally agrees to make, on the Effective Date, an Initial Term Loan to the Borrowers in the amount set forth opposite such Xxxxxx’s name on Schedule 1.1A. Amounts repaid or prepaid in respect of Initial Term Loans may not be reborrowed. The Initial Term Loans may from time to time be (a) EurodollarTerm SOFR Loans or (b) ABR Loans or (c) a
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combination thereof, as determined by the Borrower Agent and notified to the Administrative Agent in accordance with subsection 2.3.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with an Incremental Term Loan Commitment from time to time severally agrees to make term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrowers, which Incremental Term Loans (i) shall be incurred pursuant to a single drawing on the applicable Incremental Term Loan Borrowing Date, (ii) shall be denominated in Dollars, (iii) shall, except as hereinafter provided, at the option of New Holdings, be incurred and maintained as, and/or converted into one or more Borrowings of Eurodollar Base RateABR Loans or EurodollarTerm SOFR Loans; provided that all Incremental Term Loans of a given Tranche made as part of the same Borrowing shall at all times consist of Incremental Term Loans of the same Type, and (iv) shall not exceed for any such Incremental Term Loan Lender at any time of any incurrence thereof, the Incremental Term Loan Commitment of such Incremental Term Loan Lender for such Tranche. Once repaid, Incremental Term Loans may not be reborrowed. Incremental Term Loans may from time to time be (a) EurodollarTerm SOFR Loans or (b) ABR Loans or (c) a combination thereof, as determined by the Borrower Agent and notified to the Administrative Agent in accordance with subsection 2.3
2.2 Repayment of Term Loans.
The Borrowers shall repay the Initial Term Loans in consecutive quarterly installments on the last day of each calendar quarter (or, in the case of the last installment, the Maturity Date), commencing on December 31, 2019, each of which installments shall be in an aggregate principal amount equal to 0.25% of the original aggregate principal amount of the Initial Term Loans on the Effective Date; provided that with respect to the installment payable on the Maturity Date, such installment shall be in an amount equal to the then outstanding principal amount of the Initial Term Loans.
The Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding paragraph) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Commitment Agreement, Refinancing Term Loan Amendment or Extension Offer applicable thereto.
2.3 Borrowings, Conversions and Continuations of Term Loans.
(a) Each Term Loan Borrowing, each conversion of Term Loans from one Type to the other, and each continuation of EurodollarTerm SOFR Loans shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of EurodollarTerm SOFR Loans or of any conversion of EurodollarTerm SOFR Loans to ABR Loans, and (ii) on the requested date of any Borrowing of ABR Loans. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of EurodollarTerm SOFR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to ABR Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the applicable Borrower is requesting a Term Loan Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of EurodollarTerm SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Term Loans to be borrowed, converted or continued, (iv) the Type of Term Loans to be borrowed or to which existing Term Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower Agent fails to specify a Type of Term Loan in a Committed Loan Notice or if the Borrower Agent fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans shall be made as, or converted to, ABR Loans. Any such automatic conversion to
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ABR Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable EurodollarTerm SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of EurodollarTerm SOFR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Term Loan Percentage of the applicable Term Loans, and if no timely notice of a conversion or continuation is provided by the Borrower Agent, the Administrative Agent shall notify each Lender of the details of any automatic conversion to ABR Loans described in subsection 2.3(a). In the case of a Term Loan Borrowing, each Lender shall make the amount of its Term Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 6, the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the applicable Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower Agent.
(c) Except as otherwise provided herein, a EurodollarTerm SOFR Loan may be continued or converted only on the last day of an Interest Period for such EurodollarTerm SOFR Loan. During the existence of a Default, no Term Loans may be requested as, converted to or continued as EurodollarTerm SOFR Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for EurodollarTerm SOFR Loans upon determination of such interest rate.
(e) After giving effect to all Term Loan Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than seven (7) Interest Periods in effect.
(f) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Term Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower Agent, the Administrative Agent, and such Lender.
(g) With respect to SOFR or Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
2.4 Incremental Term Loan Commitments.
(a) New Holdings shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this subsection 2.4, but without requiring the consent of any of the Lenders, to request at any time and from time to time that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders (it being understood that New Holdings shall have no obligation to seek commitments in respect of Incremental Term Loans from existing Lenders)) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by New Holdings, (ii) any Lender (including any Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in
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Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Commitment Agreement shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Transferees who will become Lenders) of at least $10,000,000 (or, if less, the remaining available amount), (v) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this subsection 2.4 after the Effective Date and all Indebtedness incurred pursuant to subsection 8.2(h) shall not exceed at the time of incurrence thereof the sum of (x) $150,000,000, plus (y) the sum of all voluntary prepayments of Term Loans and Indebtedness incurred pursuant to subsection 8.2(h) that ranks pari passu with the Initial Term Loans (limited to the cash payment made by any Loan Party or Restricted Subsidiary therefor) (in each case other than any prepayment (1) of Incremental Term Loans to the extent such Incremental Term Loans were obtained pursuant to clause (z) below or of Indebtedness incurred pursuant to subsection 8.2(h) or (2) to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under an ABL Facility)) in each case prior to the applicable date of incurrence of any such Incremental Term Loan Commitments, plus (z) an unlimited amount (a “Ratio-Based Incremental Facility”) so long as, in the case of this clause (z) only, (i) in the case of Indebtedness secured by Xxxxx on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated First Lien Net Leverage Ratio is less than or equal to 3.75 to 1.00 as of the last day of the most recently ended Test Period and (ii) in the case of Indebtedness secured by Liens on the Collateral that ranks junior with to the Liens securing the Initial Term Loans, on a pro forma basis, the Consolidated Total Net Leverage Ratio is less than or equal to 5.00 to 1.00 as of the last day of the most recently ended Test Period (it being understood that the Borrowers may utilize amounts under clause (z) prior to amounts under clause (x) or clause (y) and that amounts under both clauses may be used in a single transaction), (v) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vi) each Incremental Term Loan Commitment Agreement shall specifically designate, with the approval of the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of subsection 2.4(c) are satisfied), (vii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other then outstanding Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (v)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by subsection 4.6; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a weighted average life to maturity of no less than the weighted average life to maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest weighted average life to maturity, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Commitment Agreement; provided, however, that if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”; provided, further, (A) if any Incremental Term Loans, which are secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the Indebtedness hereunder, include a Eurodollar RateTerm SOFR or ABR floor that is greater than the Eurodollar RateTerm SOFR or ABR floor applicable to the existing Initial Term Loans, such differential between interest rate floors shall be included in the calculation of Effective Yield but only to the extent an increase in the Eurodollar RateTerm SOFR or ABR floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder and (B) to the extent any increase in the Effective Yield on the existing Initial Term Loans is required pursuant to the immediately preceding proviso, such increase shall be effected first through an increase in the Eurodollar RateTerm SOFR or ABR floor applicable to such existing Initial Term Loans in an amount equal to the amount of the differential indicated in the foregoing clause (A) with any remaining required increase effected pursuant to an increase the Applicable Margin to the extent required by the definition thereof, and (III) such Tranche of Incremental Term Loans may have
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other terms (other than those described in preceding clauses (I) and (II) and clause (ix) below) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as may be reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Loan Documents and shall be secured by the Security Documents, and guaranteed under each relevant guarantee, on a pari passu or junior basis with all other Term Loans secured by the Security Documents and guaranteed under each such Collateral and Guarantee Agreement and no Incremental Term Loans shall have any obligors, guarantors or collateral other than those applicable to the other Term Loans, (x) each Lender (including any Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Commitment Agreement as provided in subsection 2. 1(b) and such Term Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Loan Documents and (xi) all Incremental Term Loan Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this subsection 2.4, the Borrowers, the Administrative Agent and each such Lender or other Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement substantially in the form of Exhibit N (appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Term Loan Commitment Agreement shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Term Loan Commitments), (y) all Incremental Term Loan Commitment Requirements are satisfied, and (z) all other conditions set forth in this subsection 2.4 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, (i) Schedule 1.1A shall be deemed modified to reflect the addition of the Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Term Loan Lender, Notes will be issued at the Borrowers’ expense to such Incremental Term Loan Lender, to be in conformity with the requirements of subsection 4.2(e) (with appropriate modification) to the extent needed to reflect the new Incremental Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this subsection 2.4, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment Agreement shall have the same Borrowers, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same amortization payment dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining amortization payment of the respective Tranche proportionately;
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(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in subsection 4.7, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to subsection 2.1(b)) on a pro rata basis; and
(iv) the Effective Yield of such Incremental Term Loans would not result in an increase in the Applicable Margins for the Initial Term Loans (assuming for this purpose, that such Incremental Term Loans had been incurred as a new Tranche of Incremental Term Loans).
To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of EurodollarTerm SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding EurodollarTerm SOFR Loans of such Tranche and which will end on the last day of such Interest Period). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
2.5 Sharing of Payments by Xxxxxxx. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:
(a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b) the provisions of this subsection 2.5 shall not be construed to apply to (A) any payment made by or on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Disqualified Lender), (y) the application of Cash Collateral provided for in subsection 4.6(e), or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans, other than an assignment to the Borrower Agent or any Restricted Subsidiary thereof (as to which the provisions of this subsection 2.5 shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
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SECTION 3. [RESERVED]
SECTION 4. GENERAL PROVISIONS APPLICABLE TO TERM LOANS
4.1 [Reserved].
4.2 Repayment of Term Loans; Evidence of Debt.
(a) The Borrowers hereby unconditionally promise to pay to the Administrative Agent for the account of each Lender (i) the then unpaid principal amount of the Term Loan of such Lender (other than Extended Term Loans), in accordance with the applicable amortization schedule set forth in subsection 2.2 (or the then unpaid principal amount of such Term Loans, on the date that any or all of the Term Loans become due and payable pursuant to Section 9), and (ii) the then unpaid principal amount of any Extended Term Loan of such Lender, in accordance with the amortization schedule and maturity date applicable thereto (or the then unpaid principal amount of such Extended Term Loan, on the date that any or all of the Extended Term Loans become due and payable pursuant to Section 9). The Borrowers hereby further agree to pay interest on the unpaid principal amount of the Term Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in subsection 4.7.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrowers to such Lender resulting from each Term Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Term Loan made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrowers and each Xxxxxx’s share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 4.2(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrowers therein recorded; provided, however, that (i) the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with applicable interest) the Term Loans made to the Borrowers by such Lender in accordance with the terms of this Agreement and (ii) in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(e) Each Borrower’s obligation to pay the principal of, and interest on, the Term Loans made by each Lender shall, if requested by such Lender, be evidenced by a promissory note duly executed and delivered by the Borrowers substantially in the form of Exhibit O, with blanks appropriately completed in conformity herewith (each, a “Note”).
4.3 [Reserved].
4.4 Mandatory Reduction of Commitments.
(a) In addition to any other mandatory commitment reductions pursuant to this subsection 4.4, the Initial Term Loan Commitment shall terminate in its entirety on the Effective Date after the funding of all Initial Term Loans on such date.
(b) In addition to any other mandatory commitment reductions pursuant to this subsection 4.4, the Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement (and the Incremental Term Loan Commitment of each Lender with such a Commitment) shall
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terminate in its entirety on the Incremental Term Loan Borrowing Date for such Incremental Term Loan Commitment after the funding of all relevant Incremental Term Loans on such date.
(c) Each reduction to the Initial Term Loan Commitment and the Incremental Term Loan Commitment under a given Tranche pursuant to this subsection 4.4 as provided above (or pursuant to subsection 4.6) shall be applied proportionately to reduce the Initial Term Loan Commitment or the Incremental Term Loan Commitment under such Tranche, as the case may be, of each Lender with such a Commitment.
4.5 Optional Prepayments.
(a) The Borrowers may at any time and from time to time prepay Term Loans, in whole or in part, upon at least one (1) Business Days’ irrevocable written notice from the Borrower Agent to the Administrative Agent in the case of ABR Loans and three (3) WorkingBusiness Days’ irrevocable written notice from the Borrower Agent to the Administrative Agent in the case of EurodollarTerm SOFR Loans and specifying the date and amount of prepayment; provided that EurodollarTerm SOFR Loans prepaid on other than the last day of any Interest Period with respect thereto shall be prepaid subject to the provisions of subsection 4.19. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender thereof. If such notice is given, the Borrowers shall make such prepayment, and the payment amount specified in such notice shall be due and payable, on the date specified therein. Accrued interest on any Notes or on the amount of any Term Loans paid in full pursuant to this subsection 4.5 shall be paid on the date of such prepayment. Accrued interest on the amount of any partial prepayment shall be paid on the date of such partial prepayment. Partial prepayments shall be in an aggregate principal amount equal to the lesser of (A) $1,500,000 or a whole multiple of $1,000,000 in excess thereof and (B) the aggregate unpaid principal amount of the Term Loans, as the case may be. Any amount prepaid may not be reborrowed. Partial prepayments of the Term Loans pursuant to this subsection 4.5 shall be applied to the remaining installments of the Term Loans as the Borrower Agent shall direct.
(b) In the event that any Borrower (x) makes any prepayment of any Term Loans in connection with any Repricing Transaction or (y) effects any amendment of this Agreement resulting in a Repricing Transaction with respect to Term Loans, in each case prior to the six (6) month anniversary of the Effective Date, the applicable Borrower shall pay a premium in an amount equal to 1.00% of (A) in the case of clause (x), the amount of the Term Loans being prepaid or (B) in the case of clause (y), the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment, in each case to the Administrative Agent, for the ratable account of each of the applicable Lenders.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrower Agent may rescind any notice of prepayment under this subsection 4.5 if such prepayment would have resulted from a refinancing of all of the Term Loans, which refinancing shall not be consummated or shall otherwise be delayed.
4.6 Mandatory Prepayments.
(a) In the event of any incurrence of Indebtedness by any Group Member (other than Indebtedness of any Group Member permitted to be issued under subsection 8.2), an amount equal to 100% of the Net Proceeds of such Indebtedness incurrence shall on the date of such Indebtedness incurrence be applied to the prepayment of the Term Loans as set forth in subsection 4.6(e).
(b) In the event of receipt by any Group Member of Net Proceeds from any Asset Sale or Recovery Event (in excess of $5,000,000 in the aggregate for all such Asset Sales and Recovery Events per fiscal year of the Borrowers), then, unless the Borrowers exercise their Reinvestment Rights in respect thereof, an amount equal to 100% of the Net Proceeds from such Asset Sale or Recovery Event shall on the date of such receipt be applied to the prepayment of the Term Loans as set forth in subsection 4.6(e); provided that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in subsection 4.6(e).
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(c) [Reserved].
(d) If, for any fiscal year of New Holdings commencing with the fiscal year ending December 31, 2020, there shall be Excess Cash Flow, the Borrowers shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans the ECF Percentage of such Excess Cash Flow less (solely to the extent funded with Internally Generated Cash) (x) the aggregate amount of all optional prepayments of Term Loans and all Indebtedness incurred pursuant to subsection 8.2(h) that that is secured on a pari passu basis with the Obligations (if such Indebtedness is in the form of revolving credit loans, solely to the extent accompanied by an equivalent permanent reduction in the revolving credit commitments thereunder), in each case, pursuant to subsection 4.5 or subsection 4.23 made during such fiscal year (provided that with respect to any prepayment pursuant to subsection 4.23, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrowers’ cash payment in respect of such prepayment), (y) the aggregate amount of all optional repayments of revolving credit loans under a Permitted Revolving Credit Facility made during such fiscal year that are accompanied by an equivalent permanent reduction in the revolving credit commitments under such Permitted Revolving Credit Facility and (z) the aggregate amount of all Term Loans purchased by New Holdings pursuant to Open Market Purchases in accordance with subsection 11.6(h) (provided that with respect to any Open Market Purchase consummated in accordance with Section 11.6(h), the aggregate amount of such purchase for purposes of this clause shall be the amount of New Holdings’ cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (i) the date on which the financial statements of New Holdings referred to in subsection 7.1, for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent and (ii) the date such financial statements are actually delivered to the Administrative Agent.
(e) Each amount required to be applied pursuant to this subsection 4.6 shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied (it being understood that a Tranche of Term Loans may agree to be allocated less than its Term Loan Percentage); provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Proceeds received solely from a Recovery Event or from an Asset Sale that would otherwise be required to be applied to prepay Term Loans in accordance with clause (b) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to subsection 4.6(a) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower Agent. Prepayments of the Term Loans of a given Tranche pursuant to subsection 4.6 shall be applied to the principal repayment installments of the Term Loans of the applicable Tranche to reduce the next four scheduled principal installments of such Term Loans in direct order of maturity, then to the remaining scheduled principal installments on a pro rata basis (other than the payment of principal due on the Maturity Date of the applicable Term Loan); provided that prepayments of EurodollarTerm SOFR Loans pursuant to this subsection 4.6, if not on the last day of the Interest Period with respect thereto, shall, at the Borrower Agent’s option, as long as no Event of Default has occurred and is continuing, be prepaid subject to the provisions of subsection 4.19 or such prepayment (after application to any ABR Loans, in the case of prepayments by the Borrowers) shall be deposited with the Administrative Agent as Cash Collateral for such EurodollarTerm SOFR Loans on terms reasonably satisfactory to the Administrative Agent and thereafter shall be applied to the prepayment of the EurodollarTerm SOFR Loans on the last day of the respective Interest Periods for such EurodollarTerm SOFR Loans next ending most closely to the date of receipt of such Net Proceeds. After such application, unless a Default or an Event of Default shall have occurred and be continuing, any remaining interest earned (if any) on such Cash Collateral shall be paid to the Borrowers.
(f) Except as set forth in subsection 4.19, all payments made under this subsection 4.6 will be without penalty or premium.
(g) Notwithstanding anything to the contrary contained in this subsection 4.6, if any Lender shall notify the Administrative Agent at least three (3) Business Days prior to the date of a prepayment
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under clause (d) of this subsection 4.6 that it wishes to decline its share of such prepayment, such share (the “Declined Prepayment Amount”) shall be retained by the Borrowers.
(h) The Borrower Agent shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made (i) pursuant to clauses (a) and (b), of this subsection 4.6, (A) in the case of ABR Loans at least one (1) Business Day prior to the date of such prepayment and (B) in the case of EurodollarTerm SOFR Loans at least three (3) WorkingBusiness Days prior to the date of such prepayment and (ii) pursuant to clause (d) of this subsection 4.6, (A) in the case of ABR Loans at least three (3) Business Days prior to the date of such prepayment and (B) in the case of EurodollarTerm SOFR Loans at least five (5) WorkingBusiness Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower Agent’s prepayment notice and of such Xxxxxx’s ratable share of the prepayment.
4.7 Interest Rates and Payment Dates.
(a) Each EurodollarTerm SOFR Loan shall bear interest for each day during each Interest Period with respect thereto on the unpaid principal amount thereof at a rate per annum equal to the Eurodollar RateTerm SOFR determined for such Interest Period plus the Applicable Margin.
(b) ABR Loans shall bear interest for the period from and including the date thereof until maturity thereof on the unpaid principal amount thereof at a rate per annum equal to the ABR plus the Applicable Margin.
(c) Upon the occurrence of an Event of Default under Section 9(f) or, at the election of the Required Lenders if all or a portion of (i) the principal amount of any of the Term Loans or (ii) any interest payable thereon, shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), any overdue amount under the Loan Documents shall, without limiting the rights of the Lenders under Section 9, bear interest at a rate per annum which is (x) in the case of overdue principal and interest, 2% above the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection or (y) in the case of overdue fees and other amounts, 2% above the rate described in paragraph (b) of this subsection, in each case from the date of such nonpayment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this subsection shall be payable on demand by the Administrative Agent made at the request of the Required Lenders.
4.8 Computation of Interest and Fees.
(a) Interest in respect of ABR Loans at any time the ABR is calculated based on the Prime Rate and all fees hereunder shall be calculated on the basis of a 365 or 366, as the case may be, day year for the actual days elapsed. Interest in respect of EurodollarTerm SOFR Loans and ABR Loans at any time the ABR is not calculated based on the Prime Rate shall be calculated on the basis of a 360 day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower Agent and the Lenders of each determination of a Eurodollar RateTerm SOFR. Any change in the interest rate on a Term Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change in the ABR becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower Agent and the Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders in the absence of manifest error. The Administrative Agent shall, at the written request of the Borrower Agent, deliver to the Borrower Agent a statement showing the quotations used by the Administrative Agent in determining the Eurodollar RateTerm SOFR.
4.9 [Reserved].
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4.10 Certain Fees. New Holdings shall pay to the Administrative Agent, for its own account, the fees set forth in the Fee Letter at the times and in the amounts specified therein. Such fees shall be fully earned when due and shall not be refundable for any reason whatsoever and will be in addition to the reimbursement of the Agent’s out-of-pocket expenses in accordance with subsection 11.5.
4.11 [Reserved].
4.12 [Reserved].
4.13 [Reserved].
4.14 [Reserved].
4.15 Inability to Determine Interest Rate for Eurodollar Loans.
(a) If in connection with any request for a EurodollarTerm SOFR Loan or a conversion to or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such Eurodollar Loan, or (B) (x) adequate and reasonable means do not exist for determining the Eurodollar RateTerm SOFR for any requested Interest Period with respect to a proposed EurodollarTerm SOFR Loan or in connection with an existing or proposed ABR Loan and (y) the circumstances described in subsection 4.15(c)(i) do not apply (in each case with respect to this clause (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required Lenders determine that for any reason the Eurodollar RateTerm SOFR for any requested Interest Period with respect to a proposed EurodollarTerm SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such EurodollarTerm SOFR Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain EurodollarTerm SOFR Loans shall be suspended (to the extent of the affected EurodollarTerm SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar RateTerm SOFR component of ABR, the utilization of the Eurodollar RateTerm SOFR component in determining ABR shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Xxxxxxx described in clause (ii) of subsection 4.15(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower Agent may revoke any pending request for a Borrowing of, conversion to or continuation of EurodollarTerm SOFR Loans (to the extent of the affected EurodollarTerm SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans in the amount specified therein.
(b) Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (i) of subsection 4.15(a), the Administrative Agent, in consultation with the Borrower Agent, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (i) of the first sentence of subsection 4.15(a), (ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower Agent that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Term Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower Agent written notice thereof.
(c) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower Agent or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower Agent) that the Borrower Agent or Required Lenders (as applicable) have determined, that:
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(i) adequate and reasonable means do not exist for ascertaining LIBORTerm SOFR for any requested Interest Period, including, without limitation, because the LIBOR Successor Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the administrator of the LIBOR Successor Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBORTerm SOFR or the LIBOR Successor Rate shall no longer be made available, or used for determining the interest rate of loans, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide LIBORTerm SOFR after such specific date (such specific date, the “Scheduled Unavailability Date”); or
(iii) (iii) syndicated loans currently being executed, or that include language similar to that contained in this subsection 4.15, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBORTerm SOFR,
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower Agent may amend this Agreement to replace LIBORTerm SOFR with (x) one or more SOFR-Based Rates or (y) another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated (the “Adjustment;” and any such proposed rate, a “LIBOR Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower Agent unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders (A) in the case of an amendment to replace LIBORTerm SOFR with a rate described in clause (x), object to the Adjustment; or (B) in the case of an amendment to replace LIBORTerm SOFR with a rate described in clause (y), object to such amendment; provided that for the avoidance of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate contained in any such amendment. Such LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower Agent and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain EurodollarTerm SOFR Loans shall be suspended (to the extent of the affected EurodollarTerm SOFR Loans or Interest Periods), and (y) the Eurodollar RateTerm SOFR component shall no longer be utilized in determining ABR. Upon receipt of such notice, the Borrower Agent may revoke any pending request for a Borrowing of, conversion to or continuation of EurodollarTerm SOFR Loans (to the extent of the affected EurodollarTerm SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in the amount specified therein.
Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than 1.00% per annum for purposes of this Agreement.
In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
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For purposes hereof, “LIBOR Successor Rate Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed LIBOR Successor Rate or Term SOFR, as applicable, any conforming changes to the definitiondefinitions of ABR, Term SOFR, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rateapplicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Raterate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement).
4.16 Pro Rata Treatment and Payments.
(a) Each payment by the Borrowers on account of any fee hereunder (other than as set forth in subsection 4.10) shall be made pro rata according to the Term Loan Percentages of the Lenders. Each payment (including each prepayment) by the Borrowers on account of principal of and interest on the Term Loans (other than as set forth in subsections 4.6, 4.17, 4.18 and 4.19) shall be made pro rata according to the Term Loan Percentages of the Lenders. All payments (including prepayments) to be made by the Borrowers on account of principal, interest and fees shall be made without set-off or counterclaim and shall be made to the Administrative Agent, for the account of the Lenders, to the Administrative Agent’s Account, in lawful money of the United States of America and in immediately available funds. The Administrative Agent shall promptly distribute such payments ratably to each Lender in like funds as received. If any payment hereunder (other than payments on EurodollarTerm SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a EurodollarTerm SOFR Loan becomes due and payable on a day other than a WorkingBusiness Day, the maturity thereof shall be extended to the next succeeding WorkingBusiness Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension unless the result of such extension would be to extend such payment into another calendar month in which event such payment shall be made on the immediately preceding WorkingBusiness Day.
(b) [Reserved].
(c) [Reserved].
(d) All payments and prepayments (other than mandatory prepayments as set forth in subsection 4.6 and other than prepayments as set forth in subsection 4.18 with respect to increased costs) of EurodollarTerm SOFR Loans hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all EurodollarTerm SOFR Loans with the same Interest Period shall not be less than $1,000,000 or a whole multiple of $1,000,000 in excess thereof.
(e) Notwithstanding anything to the contrary contained in this subsection 4.16 or elsewhere in this Agreement, the Borrowers may (i) make prepayments of Term Loans at a discount to the par value of such Term Loans and on a non pro rata basis in accordance with subsection 4.23, (ii) purchase Term Loans on a non pro rata basis pursuant to Open Market Purchases in accordance with subsection 11.6(h) and (iii) extend the final maturity of Term Loans in connection with an Extension that is permitted under subsection 4.24 without being obligated to effect such extensions on a pro rata basis among the Lenders (it being understood that no such extension (x) shall constitute a payment or prepayment of any Term Loans for purposes of this subsection or (y) shall reduce the amount of any scheduled amortization payment due under subsection 2.2, except that the amount of any scheduled amortization payment due to a Lender of Extended Term Loans may be reduced to the extent provided pursuant to the express terms of the respective Extension Offer) without giving rise to any violation of this subsection or any other
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provision of this Agreement. Furthermore, the Borrowers may take all actions contemplated by (A) subsection 4.23 in connection with the prepayment of Term Loans at a discount to the par value of such Term Loans, (B) subsection 4.24 in connection with any Extension (including modifying pricing, amortization and repayments or prepayments of Extended Term Loans) and (C) subsection 11.6(h) in connection with the purchase of Term Loans on a non pro rata basis pursuant to Open Market Purchases and, in each case, such actions taken in accordance with subsection 4.23, 4.24 and 11.6, as applicable, shall be permitted hereunder, and the differing or non pro rata payments contemplated therein shall be permitted without giving rise to any violation of this subsection or any other provision of this Agreement.
4.17 Illegality. Notwithstanding any other provisions herein, if any Change in Law occurring after the date that any Person becomes a Lender party to this Agreement shall make it unlawful for such Lender to maintain EurodollarTerm SOFR Loans as contemplated by this Agreement, the commitment of such Lender hereunder to make EurodollarTerm SOFR Loans or to convert all or a portion of ABR Loans into EurodollarTerm SOFR Loans shall forthwith be cancelled and such Lender’s Term Loans then outstanding as EurodollarTerm SOFR Loans, if any, shall, if required by law and if such Lender so requests in writing to the Administrative Agent and the Borrower Agent, be converted automatically to ABR Loans on the date specified by such Lender in such request. To the extent that such affected EurodollarTerm SOFR Loans are converted into ABR Loans, all payments of principal which would otherwise be applied to such EurodollarTerm SOFR Loans shall be applied instead to such Lender’s ABR Loans. The Borrowers hereby agree promptly to pay any Lender, upon its demand, any additional amounts necessary to compensate such Lender for any costs incurred by such Lender in making any conversion in accordance with this subsection 4.17 including, but not limited to, any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its EurodollarTerm SOFR Loans hereunder (such Lender’s notice of such costs, as certified to the Borrower Agent through the Administrative Agent, to be conclusive absent manifest error).
4.18 Requirements of Law.
(a) In the event that, at any time after the Effective Date any Change in Law or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority:
(i) does or shall subject the Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, liquidity requirement or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender which are not otherwise included in the determination of the Eurodollar RateTerm SOFR; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender (or, in the case of (i), to such Lender or the Administrative Agent) of converting, renewing or maintaining advances or extensions of credit or to reduce any amount receivable hereunder, in each case, in respect of its EurodollarTerm SOFR Loans or, in the case of (i), any Term Loans, then, in any such case, the Borrowers shall promptly pay such Lender (or, in the case of (i), such Lender or the Administrative Agent), on demand, any additional amounts necessary to compensate such Lender (or, in the case of (i), such Lender or the Administrative Agent) for such additional cost or reduced amount receivable which such Lender (or, in the case of (i), such Lender or the Administrative Agent) deems to be material as determined by such Lender (or, in the case of (i), such Lender or the Administrative Agent) with respect to such EurodollarTerm SOFR Loans or, in the case of (i), any Term Loans, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the ABR plus the Applicable Margin.
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(b) In the event that at any time after the Effective Date any Change in Law with respect to any Lender shall, in the opinion of such Lender, have the effect of reducing the rate of return on such Lender’s capital as a consequence of the obligations of such Lender hereunder to a level below that which such Lender could have achieved but for such Change in Law (taking into account such Lender’s policies with respect to capital adequacy and/or liquidity requirements) by an amount deemed by such Lender to be material, then from time to time following notice by such Lender to the Borrower Agent of such Change in Law as provided in paragraph (c) of this subsection 4.18, within 15 days after demand by such Lender, the Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender on an after-Tax basis for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts pursuant to this subsection 4.18, it shall promptly notify the Borrower Agent through the Administrative Agent, of the event by reason of which it has become so entitled. If any Lender has notified the Borrower Agent through the Administrative Agent of any increased costs pursuant to paragraph (a) of this subsection 4.18, the Borrowers at any time thereafter may, upon at least two WorkingBusiness Days’ notice to the Administrative Agent from the Borrower Agent (which shall promptly notify the Lenders thereof), and subject to subsection 4.19, prepay or convert into ABR Loans all (but not a part) of the EurodollarTerm SOFR Loans then outstanding. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of paragraph (a) of this subsection 4.18 or entitling a Lender to receive additional amounts under paragraph (a) or (c) of subsection 4.20 with respect to such Lender, it will, if requested by the Borrower Agent, and to the extent permitted by law or by the relevant Governmental Authority, endeavor in good faith to avoid or minimize the increase in costs, reduction in payments, or payment of additional amounts resulting from such event (including endeavoring to change its Eurodollar Lending Office or any other lending office); provided, however, that such avoidance or minimization can be made in such a manner that such Lender, in its sole determination, suffers no economic, legal or regulatory disadvantage.
(d) A certificate submitted by such Xxxxxx, through the Administrative Agent, to the Borrower Agent shall be conclusive in the absence of manifest error. The covenants contained in this subsection 4.18 shall survive the termination of this Agreement and repayment of the outstanding Term Loans.
4.19 Indemnity. The Borrowers agree to indemnify each Lender and to hold such Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (a) default by the Borrowers in payment of the principal amount of or interest on any EurodollarTerm SOFR Loans of such Lender, including, but not limited to any such loss or expense arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its EurodollarTerm SOFR Loans hereunder, (b) default by the Borrowers in making a conversion of ABR Loans to EurodollarTerm SOFR Loans after the Borrower Agent has given notice in accordance with subsection 2.3 or in continuing EurodollarTerm SOFR Loans for an additional Interest Period after the Borrower Agent has given a notice in accordance with clause (b) of the definition of Interest Period, (c) default by the Borrowers in making any prepayment of EurodollarTerm SOFR Loans after the Borrower Agent has given a notice in accordance with subsection 2.3 or (d) a payment or prepayment of a EurodollarTerm SOFR Loan or conversion of any EurodollarTerm SOFR Loan into an ABR Loan, in either case on a day which is not the last day of an Interest Period with respect thereto (any of the events referred to in clauses (b), (c) or (d), a “Breakage Event”). In the case of a Breakage Event, such loss or expense shall include an amount equal to the excess, as reasonably determined by such Lender of (i) the cost of obtaining funds for the EurodollarTerm SOFR Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Term Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period, but such loss or expense shall not, in any event, include any lost profit or loss of Applicable Margin. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest error. This covenant shall survive termination of this Agreement and payment of the outstanding Obligations.
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4.20 Taxes.
(a) Defined Terms. For purposes of this subsection, the term “applicable law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this subsection) the Administrative Agent or the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by Borrowers. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by Xxxxxxxxx. The Loan Parties shall, jointly and severally, indemnify the Administrative Agent and any Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this subsection) payable or paid by the Administrative Agent or the applicable Lender or required to be withheld or deducted from a payment to the Administrative Agent or the applicable Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower Agent by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of subsection 11.6(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this subsection, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Agent and the Administrative Agent, at the time or times reasonably requested by the Borrower
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Agent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower Agent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower Agent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower Agent or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this subsection) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that each Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrower Agent and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Agent or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of a Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to a Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;
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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Agent or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Agent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Agent or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Agent and the Administrative Agent in writing of its legal inability to do so.
Each Lender authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this subsection 4.20(g).
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this subsection (including by the payment of additional amounts pursuant to this subsection), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this subsection with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this subsection shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all obligations under any Loan Document.
4.21 [Reserved].
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4.22 Mitigation; Replacement of Lenders.
(a) If any Lender requests compensation under subsection 4.18, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to subsection 4.20, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Term Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to subsection 4.18 or subsection 4.20, as applicable, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under subsection 4.18, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to subsection 4.20, then the Borrowers may, at their sole expense and effort, upon notice by the Borrower Agent to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in subsection 11.6), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (A) (i) the Borrower Agent shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld or delayed, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), (iii) the Borrowers or such assignee shall have paid to the Administrative Agent the processing and recordation fee specified in subsection 11.6(d) and (iv) in the case of any such assignment resulting from a claim for compensation under subsection 4.18 or payments required to be made pursuant to subsection 4.20, such assignment will result in a material reduction in such compensation or payments and (B) substantially concurrently with satisfaction of the requirements set forth in clause (A) of this proviso, such Lender shall be deemed to have assigned and delegated its interests, rights and obligations under this Agreement and such Lender shall not be required to execute the Assignment and Assumption in connection therewith. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise (including as a result of any action taken by such Lender under paragraph (a) above), the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
4.23 Prepayments Below Par.
(a) Notwithstanding anything to the contrary set forth in this Agreement (including subsection 4.16(a) or 11.7(a)) or any other Loan Document, the Borrowers shall have the right at any time and from time to time to prepay Term Loans to the Lenders at a discount to the par value of such Term Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this subsection 4.23, provided that (A) any Discounted Voluntary Prepayment shall be offered to all Lenders of a particular tranche on a pro rata basis and (B) the Borrower Agent shall deliver to the Administrative Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the Borrower Agent (1) stating that no Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment, (2) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this subsection 4.23 has been satisfied and (3) specifying the aggregate principal amount of Term Loans to be prepaid pursuant to such Discounted Voluntary Prepayment.
(b) To the extent the Borrowers seek to make a Discounted Voluntary Prepayment, the Borrower Agent will provide written notice to the Administrative Agent substantially in the form of Exhibit G hereto (each, a “Discounted Prepayment Option Notice”) that the Borrowers desire to prepay Term Loans in an aggregate principal amount specified therein by the Borrower Agent (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Prepayment Amount of any Term Loans shall not be less than
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$10,000,000 (unless otherwise agreed by the Administrative Agent). The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (A) the Proposed Discounted Prepayment Amount for Term Loans to be prepaid, (B) a discount range (which may be a single percentage) selected by the Borrower Agent with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Term Loans to be prepaid (the “Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least five Business Days following the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).
(c) Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such Lender may specify by written notice substantially in the form of Exhibit H hereto (each, a “Lender Participation Notice”) to the Administrative Agent (A) a maximum discount to par (the “Acceptable Discount”) within the Discount Range (for example, a Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the Term Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loans to be prepaid held by such Lender with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount (“Offered Loans”). Based on the Acceptable Discounts and principal amounts of the Term Loans to be prepaid specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Borrower Agent, shall determine the applicable discount for such Term Loans to be prepaid (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Borrower Agent if the Borrower Agent has selected a single percentage pursuant to subsection 4.23(b) for the Discounted Voluntary Prepayment or (B) otherwise, the highest Acceptable Discount at which the Borrowers can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender with outstanding Term Loans to be prepaid whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Term Loans at any discount to their par value within the Applicable Discount.
(d) The Borrowers shall make a Discounted Voluntary Prepayment by prepaying those Term Loans to be prepaid (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount, provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrowers shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrowers shall prepay all Qualifying Loans.
(e) Each Discounted Voluntary Prepayment shall be made within five Business Days of the Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (and not subject to subsection 4.19), upon irrevocable notice substantially in the form of Exhibit I hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 1:00 p.m. New York City Time, three Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent in consultation with the Borrower Agent. Upon receipt of any Discounted
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Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable Term Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of a Term Loan shall be applied ratably to reduce the remaining installments of such Term Loans.
(f) To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with subsection 4.23(c) above) established by the Administrative Agent and the Borrower Agent.
(g) Prior to the delivery of a Discounted Voluntary Prepayment Notice, (A) upon written notice to the Administrative Agent, the Borrower Agent may withdraw or modify the Borrowers’ offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice and (B) no Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment pursuant to any Lender Participation Notice unless the terms of such proposed Discounted Voluntary Prepayment have been modified by the Borrower Agent after the date of such Lender Participation Notice.
(h) Nothing in this subsection 4.23 shall require the Borrowers to undertake any Discounted Voluntary Prepayment.
(i) Notwithstanding the foregoing, no proceeds of Indebtedness under the ABL Facility shall be used to fund any Discounted Voluntary Prepayment.
4.24 Extensions of Term Loans.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower Agent to all Lenders of Term Loans with a like maturity date, on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans with a like maturity date) and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term Loans and otherwise modify the terms of such Term Loans pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Term Loans and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension,” and each group of Term Loans as so extended, as well as the original Term Loans (not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted) so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to the immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower Agent and set forth in the relevant Extension Offer), the Term Loans of any Lender that agrees to an extension with respect to such Term Loans extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer until the maturity of such Term Loans, (iii) the final maturity date of any Extended Term Loans shall be no earlier than the then latest maturity date hereunder and the amortization schedule applicable to Term Loans pursuant to subsection 2.2 for periods prior to the Maturity Date, as applicable, may not be increased, (iv) the weighted average life of any Extended Term Loans shall be no shorter than the remaining weighted average life of the Term Loans extended thereby, (v) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vi) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower Agent pursuant to such Extension Offer, then the Term Loans of such Lenders shall be extended ratably up to such maximum amount based on the
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respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension shall be consistent with the foregoing, (viii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrowers and (ix) the Minimum Tranche Amount shall be satisfied unless waived by the Administrative Agent.
(b) With respect to all Extensions consummated by the Borrowers pursuant to this subsection, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of subsection 4.5 or 4.6 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that (x) the Borrower Agent may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower Agent’s sole discretion and may be waived by the Borrower Agent) of Term Loans of any or all applicable tranches be tendered and (y) no tranche of Extended Term Loans shall be in an amount of less than $50,000,000 (or, if less, the then aggregate outstanding amount of the Term Loans) (the “Minimum Tranche Amount”), unless such Minimum Tranche Amount is waived by the Administrative Agent. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this subsection (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including subsection 4.5 or 4.6 and 4.16(a)) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section.
(c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof). All Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Agent in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this subsection. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest maturity date so that such maturity date is extended to the then latest maturity date (or such later date as may be advised by local counsel to the Administrative Agent).
(d) In connection with any Extension, the Borrower Agent shall provide the Administrative Agent at least 5 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this subsection.
4.25 Borrower Agent. Each Borrower hereby irrevocably designates the Borrower Agent as its representative and agent for all purposes under the Loan Documents, including selection of interest rate options, delivery or receipt of communications, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with the Administrative Agent or any Lender. The Borrower Agent hereby irrevocably accepts such appointment. The Administrative Agent and the Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication delivered by the Borrower Agent on behalf of any Borrower. The Administrative Agent and the Lenders may give any notice to or communication with a Borrower or other Loan Party hereunder to the Borrower Agent on behalf of such Borrower or other Loan Party. Each of the Administrative Agent and each Lender shall have the right, in its discretion, to deal exclusively with the Borrower Agent for any or all purposes under this Agreement. Each warranty, covenant, agreement and undertaking made on behalf of a Borrower by the Borrower Agent shall be deemed for all purposes to have been made by
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such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
4.26 Refinancing Facilities.
(a) The Borrowers may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement selected by Borrower Agent; provided that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to subsection 2.4 or 8.2 (and subsection 8.3 to the extent secured) and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of subsection 2.4 or 8.2 (and subsection 8.3 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrowers propose that the Refinancing Term Loans shall be made or the Refinancing Notes shall be issued, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) the weighted average life to maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than the remaining weighted average life to maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans and/or Refinancing Notes shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Parent and the relevant Refinancing Term Loan Lenders (as defined below) and/or Refinancing Note Holders (as defined below); provided that with respect to Refinancing Term Loans or Refinancing Notes that are secured by Liens on the Collateral ranking on an equal priority basis (but without regard to the control of remedies) with the Liens on the Collateral securing the Term Loans, no holders of such Refinancing Term Loans or Refinancing Notes shall be permitted to share any mandatory prepayment or redemption on a more than ratable basis with the Term Loans;
(iii) such Refinancing Term Loans and/or Refinancing Notes shall not be guaranteed by any Person other than a Borrower or a Subsidiary Guarantor;
(iv) in the case of any such Refinancing Term Loans and/or Refinancing Notes that are secured such Refinancing Term Loans and/or Refinancing Notes are secured only by assets comprising Collateral, and not secured by any property or assets of a Borrower or any of its Subsidiaries other than the Collateral;
(v) all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and optional prepayment or redemptions terms) shall either, at the option of the Borrower Agent, (I) be consistent with market terms and conditions (taken as a whole) at the time of Incurrence or effectiveness (as determined by the Borrower Agent in good faith), (II) be substantially identical to those applicable to the then outstanding Term Loans, or (III) (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan Lenders and/or Refinancing Note Holders than those applicable to the then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date at the time of such refinancing, except where the Lenders also receive the benefit of such more favorable terms), in each case as determined by the Borrower Agent in good faith; provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or junior in right of payment and/or security with the remaining Term Loans or may be unsecured so
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long as the holders of any Refinancing Term Loans and/or Refinancing Notes that are subordinated in right of payment and/or security are subject to an Additional Intercreditor Agreement (provided that a certificate of a Responsible Officer of Borrower Agent delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrower Agent has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions (other than the terms and conditions of the Additional Intercreditor Agreement referred to in this clause (v), satisfy such requirement unless the Administrative Agent provides notice to Borrower Agent of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects))).
(b) The Borrowers may approach any Lender or any other Borrower Agent that would be an Eligible Assignee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”) or Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans made to the Borrowers.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by subsection 4.26(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Term Loans and Refinancing Notes on the terms specified by Borrower Agent) and hereby waive the requirements of this Agreement or any other Loan Document that may otherwise prohibit any transaction contemplated by subsection 4.26(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Borrowers, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in subsection 4.26(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Loan Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower Agent, to effect the provisions of this subsection 4.26, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in subsection 2.2 (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrowers to effect the foregoing.
SECTION 5. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to each Lender and the Administrative Agent that:
5.1 Financial Condition.
(a) The audited consolidated balance sheet of Parent and its Subsidiaries at December 31, 2018 and the related consolidated statements of operations, stockholders’ equity and cash flows for the fiscal year ended on such dates, reported on by certified public accountants of nationally recognized standing and (ii) the unaudited consolidated balance sheet of Parent and its Subsidiaries at June 30, 2019 and the related consolidated statements of operations and cash flows for the fiscal period ended on such
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date, fairly present in all material respects (except, with respect to interim reports, for normal year-end adjustments and the absence of footnotes) the consolidated financial position of Parent and its Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the fiscal periods then ended and, in the case of the statements referred to in the foregoing clause (ii), the portion of the fiscal year through June 30, 2019, in each case, in accordance with GAAP consistently applied throughout the periods involved (except as noted therein).
(b) No Change. Since December 31, 2018, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.
5.2 Corporate Existence; Compliance with Law. Each Group Member (a) is a Person duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, (b) has the requisite power and authority and the legal right to own and operate its property, to lease the property it operates and to conduct the business in which it is currently engaged, except to the extent that the failure to possess such power and authority and such legal right would not, in the aggregate, have a Material Adverse Effect, (c) is duly qualified and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect and (d) is in compliance with all applicable Requirements of Law (including occupational safety and health, health care, pension, certificate of need, the Comprehensive Environmental Response, Compensation and Liability Act, any so-called “Superfund” or “Superlien” law, or any applicable federal, state, local or other statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any Materials of Environmental Concern), except to the extent that the failure to comply therewith would not, in the aggregate, have a Material Adverse Effect.
5.3 Corporate Power; Authorization.
(a) Each of the Loan Parties and Parent has the requisite power and authority and the legal right to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrowers, to obtain extensions of credit made or deemed made hereunder. Each of the Loan Parties and Parent has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and in case of the Borrowers, to authorize the extensions of credit made hereunder on the terms and conditions of this Agreement.
(b) No consent or authorization of, or filing with, notice to or other act by or in respect of, any Person (including any Governmental Authority) is required in connection with the extensions of credit made or deemed made hereunder or with the execution, delivery, performance by any Loan Party, validity or enforceability of this Agreement or any Loan Document to the extent that it is a party thereto, or the guarantee of the Obligations pursuant to the Guarantee and Collateral Agreement, except (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect Liens created under the Loan Documents and (iii) those consents, authorizations, filings and notices, the failure of which to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Enforceable Obligations. Each of the Loan Documents has been duly executed and delivered on behalf of each Loan Party and Parent to the extent party thereto and each of such Loan Documents constitutes the legal, valid and binding obligation of such Loan Party and Parent, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of each Loan Document and the guarantee of the Obligations pursuant to the Guarantee and Collateral Agreement will not violate any Requirement of Law or any Contractual Obligation applicable to or binding upon any Group Member or any of its properties or assets, which violations, individually or in the aggregate, would have a Material Adverse Effect, and will not result in the creation or imposition (or the obligation to create or impose) of
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any Lien (other than any Liens created pursuant to the Loan Documents) on any of its or their respective properties or assets.
5.6 No Material Litigation. Except as disclosed in the SEC Filings or on Schedule 5.6, no litigation or investigation known to any Borrower through receipt of written notice or proceeding of or by any Governmental Authority or any other Person is pending against any Group Member, (a) with respect to the validity, binding effect or enforceability of any Loan Document, or with respect to the Term Loans made hereunder, or (b) which would have a Material Adverse Effect.
5.7 Investment Company Act. No Group Member is required to be registered as an “investment company” (as the quoted term is defined or used in the Investment Company Act of 1940, as amended).
5.8 Federal Regulation; Use of Proceeds.
(a) No extensions of credit hereunder will be used for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of the Board. No Group Member is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under said Regulation U.
(b) All proceeds of the Term Loans incurred on the Effective Date will be used by the Borrowers to finance, in part, the Transactions.
(c) The Borrowers will not request any Borrowings, and the Borrowers shall not use, and shall procure that their Subsidiaries and their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to Intermediate Holdings or its Subsidiaries or, to the knowledge of Borrowers, any other party hereto.
5.9 No Default or Breach. Except as set forth in the SEC Filings made prior to the Effective Date or on Schedule 5.9, no Group Member is in default or breach (i) in the payment or performance of any of its Contractual Obligations (other than Indebtedness) in any respect which would have a Material Adverse Effect, or (ii) under any condition, term or requirement of any FCC License or any order, award or decree of any Governmental Authority or arbitrator binding upon or affecting it or by which any of its properties or assets may be bound or affected in any respect which would have a Material Adverse Effect.
5.10 Taxes. Each Group Member has paid all Taxes shown to be due and payable on its Tax returns or extension requests or on any assessments made against it or any of its property and all other Taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of such Group Member), except any such Taxes, fees or charges, the payment of which, or the failure to pay, would not have a Material Adverse Effect; and, to the knowledge of the Borrowers, no claims are being asserted with respect to any such Taxes, fees or other charges (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of the applicable Group Member), except as to any such Taxes, fees or other charges, the payment of which, or the failure to pay, would not have a Material Adverse Effect.
5.11 Subsidiaries; Loan Parties. As of the Effective Date, (a) the Subsidiaries of Intermediate Holdings listed on Schedule 5.11(a) constitute all of the Domestic Subsidiaries of Intermediate Holdings, (b) the Subsidiaries listed on Schedule 5.11(b) constitute all of the Foreign Subsidiaries of Intermediate Holdings and (c) the Loan Parties listed on Schedule 5.11(c) constitute all of the Loan Parties. As of the Effective Date, Schedule 5.11(a) identifies all of the Broadcast License Subsidiaries.
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5.12 Ownership of Property; Liens; Licenses.
(a) Except as disclosed in Schedule 8.3 hereof, each Group Member has good and marketable title to, or valid and subsisting leasehold interests in, all its real property used by such Group Member in the operation of its business, and good title to all its respective other owned property, except where the failure to have such title or interest would not have a Material Adverse Effect. All such real property and other owned property is free and clear of any Liens, other than Liens permitted by subsection 8.3.
(b) As of the Effective Date, Schedule 5.12 sets forth all FCC Licenses held by any Group Member (and the respective holders of such FCC Licenses) and all other licenses and permits issued by any Governmental Authority which are held by any Group Member that are in effect as of the Effective Date and are material to the business of the Group Members. Each of the foregoing FCC Licenses, and each other license or permit from a Governmental Authority that is material to the business of the Group Members, is valid and in full force and effect, and except as disclosed on Schedule 5.12, the Group Members are in compliance in all material respects with the terms and conditions thereof and any requirements under applicable FCC regulation.
5.13 Intellectual Property. Each Group Member owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. No claim that could reasonably be expected to have a Material Adverse Effect has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does any Borrower know of any valid basis for any such claim. The use of Intellectual Property by the Group Members does not infringe on the rights of any Person in a manner that could reasonably be expected to have a Material Adverse Effect.
5.14 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrowers, threatened; (b) hours worked by and payment made to employees of any Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of insurance coverage, other contributions or liabilities associated with employee health and welfare benefit plans have been paid or accrued as a liability on the books of such Group Member.
5.15 ERISA. Except as would not have a Material Adverse Effect: (i) each Loan Party and each ERISA Affiliate is in compliance with the applicable provisions of ERISA and of the Code relating to Plans; (ii) no Reportable Event or non-exempt Prohibited Transaction has occurred or is reasonably expected to occur with respect to any Plan; (iii) there has been no determination that any Single Employer Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (iv) no Lien in favor of the PBGC or any Single Employer Plan has been imposed upon any Loan Party or any ERISA Affiliate that remains unsatisfied; (v) no Loan Party and no ERISA Affiliate has received from the PBGC or a plan administrator any notice relating to an intention to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan under Section 4042 of ERISA; (vi) no Loan Party and no ERISA Affiliate has incurred any Withdrawal Liability that remains unsatisfied; and (vii) no Loan Party and no ERISA Affiliate has received any notice concerning the imposition of Withdrawal Liability or any determination that a Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization, terminated or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA).
5.16 Environmental Matters.
(a) Except as disclosed in the SEC Filings or on Schedule 5.16, to the knowledge of the Borrowers, the Properties do not contain any Materials of Environmental Concern in concentrations which constitute a violation of, or would reasonably be expected to give rise to liability under, Environmental Laws that would have a Material Adverse Effect.
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(b) The Properties and all operations at the Properties are in compliance with all applicable Environmental Laws, except for failure to be in compliance that would not have a Material Adverse Effect, and there is no contamination at, under or about the Properties that would have a Material Adverse Effect.
(c) No Group Member has received any written notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to the Properties that would have a Material Adverse Effect, nor does any Borrower have knowledge that any such action is being contemplated, considered or threatened.
(d) There are no judicial proceedings or governmental or administrative actions pending or threatened under any Environmental Law to which any Group Member is or will be named as a party with respect to the Properties that would have a Material Adverse Effect, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders under any Environmental Law with respect to the Properties that would have a Material Adverse Effect.
5.17 Disclosure. None of the written reports, financial statements, certificates or other written information (other than projections, budgets or other estimates or forward-looking statements or information of a general economic or industry nature or reports or studies prepared by third parties that were not expressly commissioned by a Group Member (collectively, the “Projections”)), taken as a whole, furnished by or on behalf of any Group Member to the Administrative Agent or any Lender prior to the Effective Date in connection with the transactions contemplated by this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished prior to the Effective Date) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to Projections, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed by the Borrowers to be reasonable at the time such Projections were prepared, it being understood that Projections by their nature are uncertain and no assurance is given that the results reflected in such Projections will be achieved.
5.18 Security Documents.
(a) The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). In the case of the Pledged Stock that are Securities (as defined in the UCC) described in the Guarantee and Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to the Administrative Agent (together with a properly completed and signed stock power or endorsement), and in the case of the other Collateral in which a security interest can be perfected under the relevant UCC by filing a UCC financing statement and described in the Guarantee and Collateral Agreement, when financing statements and other filings specified on Schedule 5.18 in appropriate form are filed in the offices specified on Schedule 5.18, the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by subsection 8.3 and, in the case of Collateral consisting of Pledged Stock, inchoate Liens arising by operation of law).
(b) Each of the Mortgages upon proper filing is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties described therein and proceeds thereof except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and when the Mortgages are filed in the appropriate recording offices,
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each such Mortgage shall constitute a valid and enforceable Lien with record notice to third parties on all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any other Person (except that that the Lien created in the Mortgaged Properties may be subject to the Liens permitted by subsection 8.3).
5.19 Solvency. As of the Effective Date and after giving effect to the Transactions, New Holdings and its Subsidiaries, on a consolidated basis, are Solvent.
5.20 [Reserved].
5.21 Patriot Act. To the extent applicable, each Group Member is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the Act. No part of the proceeds of the Term Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
5.22 Anti-Corruption Laws and Sanctions. Each of Intermediate Holdings and each Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Intermediate Holdings, each Borrower, its Subsidiaries and their respective officers and employees, and to the knowledge of Intermediate Holdings, each Borrower and their subsidiaries, their respective directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) any Borrower, any of its Subsidiaries or any of their respective directors, officers or employees, or (b) to the knowledge of Intermediate Holdings, each Borrower and their Subsidiaries, any agent of Intermediate Holdings, any Borrower or any of their Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No transaction contemplated by the Credit Agreement will violate Anti-Corruption Laws or applicable Sanctions.
5.23 Plan Assets; Prohibited Transactions. None of New Holdings or any of its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of Plan Asset Regulations), and neither the execution, delivery or performance of the transactions contemplated under this Agreement, including the making of the Term Loans hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The representation in this subsection 5.23 is based on the assumption that none of the Lenders is, or is acting on behalf of, a benefit plan investor as defined in Section 3(42) of ERISA.
5.24 Beneficial Ownership Certificate. As of the Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects. Covered Entities. No Loan Party is a Covered Entity.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions Precedent to Effectiveness. This Agreement shall become effective on the first date on which each of the following conditions is satisfied:
(a) Credit Agreement; Guarantee and Collateral Agreement. The Administrative Agent shall have received (i) this Agreement, executed and delivered by the Administrative Agent, Intermediate Holdings and the Borrowers and (ii) executed counterparts of the Guarantee and Collateral Agreement.
(b) Fees.
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(i) The Borrowers shall have paid all fees previously agreed in writing to be paid on the Effective Date.
(ii) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges, expenses and disbursements of counsel to the Administrative Agent and the Lead Arrangers (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Effective Date, and in the case of expenses, such expenses shall have been invoiced at least two (2) Business Days prior to the Effective Date (except as otherwise reasonably agreed by the Borrower Agent).
(iii) In addition, the Administrative Agent shall have also received a fully executed copy of the Fee Letter.
(c) Legal Opinion. The Administrative Agent shall have received, dated the Effective Date and addressed to the Administrative Agent and the Lenders, (i) an opinion of Xxxxx Day, special counsel to the Loan Parties, and (ii) an opinion of Xxxxxx Xxxxxx PLLC, special FCC counsel to the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and their counsel. Such opinion shall also cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent shall reasonably require.
(d) Closing Certificates. The Administrative Agent shall have received a closing certificate of Intermediate Holdings, New Holdings and each Effective Date Subsidiary Borrower, dated the Effective Date, substantially in the form of Exhibits B-1, B-2 and B-3 hereto, respectively, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Administrative Agent and their counsel, executed by the Chief Executive Officer or any Vice President and the Secretary or any Assistant Secretary of Intermediate Holdings, each Borrower and each Subsidiary Guarantor respectively.
(e) Organizational Documents. The Administrative Agent and their counsel shall have received true and correct copies of the certificate of incorporation and by-laws or operating agreement of each Loan Party, certified as to authenticity by the Secretary or Assistant Secretary of each such Loan Party.
(f) Corporate Documents. The Administrative Agent and their counsel shall have received copies of certificates from the Secretary of State or other appropriate authority of such jurisdiction, evidencing the good standing or existence of each Loan Party in its jurisdiction of incorporation or organization.
(g) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall have (i) received the certificates representing the shares pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and (ii) received the promissory notes pledged pursuant to the Guarantee and Collateral Agreement, endorsed in blank by a duly authorized officer of the pledgor thereof.
(h) Filings. All necessary or advisable filings shall have been duly made or made available to the Administrative Agent or its counsel to create a perfected first priority Lien on and security interest in all Collateral in which a security interest can be perfected by filing a UCC-1 financing statement, and all such Collateral shall be free and clear of all Liens, except Liens permitted by subsection 8.3.
(i) Lien Searches. The Administrative Agent shall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by subsection 8.3 or discharged on or prior to the Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
(j) Representations and Warranties. Each of the representations and warranties made in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Effective Date as if made on and as of such date (unless (i) such representation or warranty is already by
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its terms qualified as to “materiality,” “Material Adverse Effect” or similar language, in which case such representation or warranty shall be true and correct in all respects as of the Effective Date after giving effect to such qualification or (ii) such representation or warranty is stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects (or in all respects if such representation or warranty is already by its terms qualified as to “materiality,” “Material Adverse Effect” or similar language) as of such earlier date).
(k) No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing at the time of, or after giving effect to this Agreement and the Term Loans made hereunder on the Effective Date.
(l) Beneficial Ownership. Upon the reasonable request of any Lender made at least 5 Business Days prior to the Effective Date, at least three Business Days prior to the Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(m) Patriot Act. Before the end of the third Business Day prior to the Effective Date, the Administrative Agent and each Lender shall have received all documentation and other information, which has been requested in writing by the Administrative Agent or such Lender at least five Business Days prior to the Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(n) Solvency Certificate. The Administrative Agent shall have received a solvency certificate in substantially the form attached hereto as Exhibit J from the Chief Financial Officer of New Holdings that shall certify as to the solvency of New Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(o) Notes. The Administrative Agent shall have received a Note executed by the Borrowers in favor of each Lender requesting a Note.
(p) Insurance. Subject to subsection 7.5(e), the Administrative Agent shall have received evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lenders’ loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral.
(q) Intellectual Property Security Agreements. Patent, trademark and copyright security agreements, in form and substance reasonably satisfactory to the Administrative Agent, covering the registered intellectual property listed on the applicable schedules to the Guarantee and Collateral Agreement, duly executed by the Borrowers and each other Loan Party, shall have been received by the Administrative Agent.
(r) Funds Flow. The Administrative Agent shall have received a funds flow memorandum with respect to the transactions contemplated hereby on the Effective Date in form, scope and substance reasonably satisfactory to the Administrative Agent.
(s) Historical Financial Statements. The Administrative Agent shall have received the financial statement referenced in subsection 5.1.
(t) Refinancing. The Refinancing shall have been, or substantially contemporaneously with the effectiveness of this Agreement shall be, consummated.
(u) Permitted 2019 ABL Intercreditor Joinder Agreement. The Administrative Agent shall have received the Permitted 2019 ABL Intercreditor Joinder Agreement, executed by the Administrative Agent and, if requested by the Administrative Agent, the First Lien Notes Collateral Agent and the ABL Agent.
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(v) Pari Passu Intercreditor Agreement. The Administrative Agent shall have received the Pari Passu Intercreditor Agreement, executed by the Administrative Agent and the First Lien Notes Collateral Agent.
For purposes of determining compliance with the conditions specified in this Section 6 (and irrespective of whether any Lender has signed this Agreement), 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 7. AFFIRMATIVE COVENANTS
From and after the Effective Date, so long as any Term Loan or Note remains outstanding and unpaid or any other amount is owing to any Lender (other than indemnities and other contingent liabilities not then due and payable that survive repayment of the Term Loans) or the Administrative Agent hereunder, each Borrower hereby agrees that it shall, and, in the case of the agreements contained in subsections 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 and 7.11 cause each of its Restricted Subsidiaries to, and Intermediate Holdings hereby agrees (solely with respect to subsection 7.10 and 7.15) that it shall and shall cause each of its Restricted Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative Agent (with sufficient copies for each Lender) or otherwise make available as described in the last sentence of subsection 7.2:
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of New Holdings, a copy of the consolidated balance sheet of New Holdings and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered), or qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other certified public accountants of nationally recognized standing not unacceptable to the Administrative Agent;
(b) as soon as available, but in any event not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of New Holdings, the unaudited consolidated balance sheet of New Holdings and its consolidated Subsidiaries at the end of such quarter and the related unaudited consolidated statements of operations and cash flows of New Holdings and its consolidated Subsidiaries for such applicable period, and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form, the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes);
(c) all financial statements shall be prepared in reasonable detail in accordance with GAAP (provided that interim statements may be condensed and may exclude footnote disclosure and are subject to year-end adjustment) applied consistently throughout the periods reflected therein and with prior periods (except as concurred in by such accountants or officer, as the case may be, and disclosed therein and except that interim financial statements need not be restated for changes in accounting principles which require retroactive application, and operations which have been discontinued (as defined in ASC 360, “Property, Plant and Equipment”) during the current year need not be shown in interim financial statements as such either for the current period or comparable prior period); and
(d) simultaneously with the delivery of each set of consolidated financial statements referred to in subsections 7.1(a) and 7.1(b), to the extent there exists any Unrestricted Subsidiaries at such time, the related unaudited (it being understood that such information may be audited at the option of New Holdings) consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.
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Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this subsection 7.1 may be satisfied by furnishing the applicable financial statements of Parent and its consolidated Subsidiaries within the time periods specified in such paragraphs; provided that (i) (w) Parent directly holds all of the Capital Stock of Intermediate Holdings, (x) Intermediate Holdings directly holds all of the Capital Stock of New Holdings, (y) Intermediate Holdings is in compliance with subsection 8.17 and (z) Parent is in compliance with subsection 11.20, (ii) to the extent such financial statements relate to Parent and its consolidated Subsidiaries, such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and any other entity (other than New Holdings and its consolidated Subsidiaries), on the one hand, and the information relating to New Holdings and its consolidated Subsidiaries on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer either Parent or of New Holdings as having been fairly presented in all material respects and (iii) to the extent such financial statements are in lieu of the financial statements required to be provided under subsection 7.1(a), such financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other certified public accountants of nationally recognized standing not unacceptable to the Administrative Agent, which report shall not be subject to a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit. New Holdings hereby represents, warrants and covenants that, in the event that the obligations in paragraphs (a) or (b) of this subsection 7.1 are satisfied by furnishing the applicable financial statements of Parent and its consolidated Subsidiaries pursuant to this paragraph, each of the conditions set forth in this paragraph shall have been satisfied.
Documents required to be delivered pursuant to this subsection 7.1 and subsection 7.2 below (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent or New Holdings posts such documents, or provides a link thereto, on Parent’s or New Holdings’ website on the Internet at xxx.xxxxxxx.xxx or (ii) on which such documents are posted on Parent’s or New Holdings’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial or public third-party website or whether sponsored by the Administrative Agent (including the website of the SEC at xxxx://xxx.xxx.xxx)); provided that (x) in each case, other than with respect to regular periodic reporting, the Borrower Agent shall notify the Administrative Agent of the posting of any such documents and (y) in the case of documents required to be delivered pursuant to subsection 7.2, at the request of the Administrative Agent, the Borrower Agent shall furnish to the Administrative Agent a hard copy of such document. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
7.2 Certificates; Other Information. Furnish to the Administrative Agent or otherwise make available as described in the last sentence of this subsection 7.2:
(a) [Reserved];
(b) within five (5) Business Days following delivery of the financial statements referred to in subsections 7.1(a) and 7.1(b), a certificate of the Responsible Officer of New Holdings in the form attached as Exhibit M hereto (i) stating that, to the best of such officer’s knowledge, such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) in the case of financial statements under subsection 7.1(a), beginning with the financial statements for the fiscal year ending December 31, 2020, setting forth reasonably detailed calculations of Excess Cash Flow;
(c) promptly upon receipt thereof, copies of all final reports submitted to any Borrower by independent certified public accountants in connection with each annual, interim or special audit of the books of such Borrower made by such accountants, including any final comment letter submitted by such accountants to management in connection with their annual audit;
(d) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements and all regular and periodic reports and all final registration statements and final prospectuses, if any, filed by Parent or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any Governmental Authority succeeding to any of its functions;
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(e) concurrently with the delivery of the financial statements referred to in subsections 7.1(a) and 7.1(b), a management summary describing and analyzing the performance of New Holdings and its Restricted Subsidiaries during the periods covered by such financial statements; provided, however, that such management summary need not be furnished so long as Parent or New Holdings is a reporting company under the Securities Exchange Act of 1934, as amended;
(f) concurrently with the delivery of the consolidated financial statements referred to in subsection 7.1(a), but in any event within 90 days after the beginning of each fiscal year of New Holdings to which such budget relates, an annual operating budget of New Holdings and its Restricted Subsidiaries, on a consolidated basis;
(g) promptly following any request by the Administrative Agent or the Required Lenders (through the Administrative Agent) therefor, copies of any documents or notices described in Sections 101(k) or 101(l) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Loan Parties or their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of an applicable Multiemployer Plan, then Borrowers shall cause the Loan Parties and/or their ERISA Affiliates to promptly make a request for such documents or notices from the administrator or sponsor of such Multiemployer Plan and Borrower Agent shall provide copies of such documents and notices promptly after receipt thereof; and
(h) promptly, such additional financial and other information as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request, including, without limitation, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and, to the extent required, the Beneficial Ownership Regulation.
The requirements of subsection 7.1 above and this subsection 7.2 shall be deemed to be satisfied if Parent or New Holdings shall have made such materials available to the Administrative Agent, including by electronic transmission, within the time periods specified therefor and pursuant to procedures approved by the Administrative Agent, or by filing (or having Parent file) such materials by electronic transmission with the Securities and Exchange Commission, in which case “delivery” of such statements for purposes of subsections 7.1(a) and 7.1(b) shall mean making such statements available in such fashion.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, except (a) when the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the applicable Group Member, as the case may be and (b) to the extent the failure to pay or discharge the same could not reasonably be expected to have a Material Adverse Effect.
7.4 Conduct of Business; Maintenance of Existence; Compliance. Continue to engage in business conducted or proposed to be conducted by New Holdings and its Restricted Subsidiaries on the Effective Date or any business that is similar, reasonably related, incidental, complementary or ancillary thereto, including without limitation in broadcasting and other media businesses, and preserve, renew and keep in full force and effect its legal existence and take all reasonable action to maintain all rights, privileges, franchises, accreditations, certifications, authorizations, licenses, permits, approvals and registrations, necessary or desirable in the normal conduct of its business except for rights, privileges, franchises, accreditations, certifications, authorizations, licenses, permits, approvals and registrations the loss of which would not in the aggregate have a Material Adverse Effect, and except as otherwise permitted by this Agreement; and comply with all applicable Requirements of Law and Contractual Obligations except to the extent that the failure to comply therewith would not, in the aggregate, have a Material Adverse Effect.
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7.5 Maintenance of Property; Insurance.
(a) Except if the failure to do so could not reasonably be expected to result in a Material Adverse Effect, keep all property useful and necessary in its business in good working order and condition (ordinary wear and tear, casualty and condemnation excepted).
(b) Maintain with financially sound and reputable insurance companies (provided that if any such insurance company shall at any time cease to be financially sound and reputable, there shall be no breach of this provision in the event that the Borrowers promptly (and in any event within forty-five (45) days of such date) obtain insurance from an alternative insurance carrier that is financially sound and reputable) insurance with respect to its properties in at least such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as New Holdings and its Restricted Subsidiaries in the same geographic locales) and against at least such risks as are customarily insured against in the same general area by companies engaged in the same or similar business.
(c) Maintain casualty and property insurance for which the Borrowers shall (i) use commercially reasonable efforts to cause such insurance to provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by the Administrative Agent of written notice thereof, and (ii) name the Administrative Agent as insured party or lenders’ loss payee.
(d) Upon request by the Administrative Agent or the Required Lenders (through the Administrative Agent), the Borrower Agent shall deliver to the Administrative Agent information in reasonable detail as to the insurance maintained by the Group Members.
(e) No later than thirty (30) days after the Effective Date (or such later date as reasonably agreed by the Administrative Agent), deliver to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent (i) an additional insured endorsement with respect to the liability insurance certificate delivered pursuant to subsection 6.1(q) and (ii) a lender loss payee endorsement with respect to the property insurance certificate delivered pursuant to subsection 6.1(q).
(f) If any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrowers shall (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, including, without limitation, evidence of annual renewals of such insurance.
7.6 Inspection of Property; Books and Records; Discussions; Annual Meetings.
(a) Keep proper books of record and account in which full, true and correct in all material respects entries are made of all material dealings and transactions in relation to its business and activities which permit financial statements to be prepared in conformity with GAAP and all Requirements of Law; and permit representatives of the Administrative Agent (or any designee thereof) upon reasonable notice to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time during normal business hours and as often as may reasonably be desired upon reasonable notice (but no more than once per annum unless an Event of Default has occurred and is continuing), and to discuss the business, operations, properties and financial and other condition of Parent and its Restricted Subsidiaries with officers and employees thereof and with their independent certified public accountants (with, at the option of the Borrower Agent, an officer of the Borrower Agent present) upon reasonable advance notice to the Borrower Agent.
(b) Within 120 days after the end of each fiscal year of New Holdings, at the request of the Administrative Agent or the Required Lenders (through the Administrative Agent), hold a meeting at a
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mutually agreeable location, venue and time or, at the option of the Administrative Agent or the Required Lenders (through the Administrative Agent), by conference call (the reasonable costs of such venue or call to be paid by the Borrowers) with all Lenders who choose to attend such meeting at which meeting shall be reviewed, to the extent permitted by applicable Requirements of Law (including applicable national security laws, directives, policies, rules, regulations and procedures), the financial results of the previous fiscal year and the financial condition of Parent and its Restricted Subsidiaries and the operating budget presented for the current fiscal year of New Holdings.
7.7 Notices. Promptly give notice to the Administrative Agent (who shall deliver to each Lender) upon a Responsible Officer obtaining knowledge of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, investigation or proceeding which may exist at any time between Intermediate Holdings and any of its Subsidiaries and any Governmental Authority, or receipt of any notice of any environmental claim or assessment against Intermediate Holdings or any of its Subsidiaries by any Governmental Authority, which in any such case would reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting Intermediate Holdings or any of its Subsidiaries (i) in which more than $35,000,000 of the amount claimed is not covered by insurance or (ii) in which injunctive or similar relief is sought which if obtained would reasonably be expected to have a Material Adverse Effect;
(d) the occurrence of any Reportable Event that, alone or together with any other Reportable Events that have occurred, would reasonably be expected to result in a Material Adverse Effect, and in addition to such notice, deliver to the Administrative Agent and each Lender whichever of the following may be applicable: (A) a certificate of the Responsible Officer of the Borrower Agent setting forth details as to such Reportable Event and the action that the Loan Party or ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice of such Reportable Event that may be required to be filed with the PBGC, or (B) any notice delivered by the PBGC in connection with such Reportable Event;
(e) the occurrence of any event which could reasonably be expected to have a material adverse effect on the aggregate value of the Collateral or on the security interests created by the Guarantee and Collateral Agreement; and
(f) any development or event that has had or could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection 7.7 shall be accompanied by a statement of the Responsible Officer of the Borrower Agent setting forth details of the occurrence referred to therein and (in the cases of clauses (a) through (f)) stating what action the Borrowers propose to take with respect thereto.
7.8 Environmental Laws. Except to the extent the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Comply with, and take commercially reasonable steps to cause all tenants and subtenants, if any, to comply with, all applicable Environmental Laws, and obtain and comply with and maintain, and take commercially reasonable steps to cause all tenants and subtenants to obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions to the extent required under Environmental Laws and promptly comply with all legally binding lawful orders and directives of all Governmental Authorities regarding Environmental Laws.
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7.9 [Reserved].
7.10 Additional Loan Parties; Pledge of Stock of Additional Subsidiaries; Additional Collateral, etc..
(a) With respect to any new wholly-owned Restricted Subsidiary of Intermediate Holdings (other than a Foreign Subsidiary, a FSHCO, a Non-Significant Subsidiary, a Broadcast License Subsidiary or a Receivables Subsidiary, or any other Restricted Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, determined in consultation with the Borrower Agent, the burden, cost or consequences (including any material adverse tax consequences) of such Restricted Subsidiary becoming a Borrower or providing a guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom) created or acquired after the Effective Date (including as a result of the consummation of any Business Acquisition) (which, for purposes of this clause (a) shall include any existing wholly-owned Restricted Subsidiary that ceases to be a Foreign Subsidiary, a FSHCO, a Non-Significant Subsidiary, a Broadcast License Subsidiary or a Receivables Subsidiary), promptly (i) notify the Administrative Agent in writing whether such new Restricted Subsidiary shall be designated a “Borrower” or “Subsidiary Guarantor” under this Agreement and the other Loan Documents (which determination of such designation shall be in the sole discretion of the Borrowers) and (ii) cause such Restricted Subsidiary to (x) in the event it has been designated a “Borrower” pursuant the written notice referred to in the immediately preceding clause (i), become a party to (A) this Agreement by executing a Joinder Agreement and (B) the Guarantee and Collateral Agreement, which shall be accompanied by such resolutions, incumbency certificates and legal opinions as are reasonably requested by the Administrative Agent or the Required Lenders or (y) in the event it is designated a “Subsidiary Guarantor” pursuant the written notice referred to in the immediately preceding clause (i), become a party to the Guarantee and Collateral Agreement, which shall be accompanied by such resolutions, incumbency certificates and legal opinions as are reasonably requested by the Administrative Agent or the Required Lenders.
(b) Pledge the Capital Stock, or other equity interests and intercompany indebtedness, owned by any Loan Party that is created or acquired after the Effective Date pursuant to the Guarantee and Collateral Agreement (it being understood and agreed that, notwithstanding anything that may be to the contrary herein, this subsection 7.10(b) shall not require any Loan Party to pledge more than 66% of the outstanding voting stock of any of its Foreign Subsidiaries or FSHCOs) and (ii) with regard to any property acquired by any Loan Party after the Effective Date (other than property described in paragraphs (b)(i) or (c)) (x) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent or the Required Lenders deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property in accordance with the Guarantee and Collateral Agreement and (y) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders.
(c) With respect to any Material Real Property owned by any Loan Party (unless subject to a Lien permitted under subsections 8.3(f) or 8.3(h)), promptly (but in any event not later than (x) in the case of any Material Real Property existing on the Effective Date, 180 days after the Effective Date and (y) in the case of any Material Real Property acquired after the Effective Date, 90 days after the date of such acquisition, which date, in each case, may be extended by the Administrative Agent): (i) execute and deliver a first priority Mortgage in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Administrative Agent with title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey or the equivalent (including, without limitation, ExpressMaps) thereof, together with a surveyor’s certificate, in each case, if available; provided that such other survey equivalent is sufficient to allow the issuance of the title insurance policy without any exception (other than customary exceptions) for such matters as would be shown on an accurate survey of the Mortgaged Property and with a standard “land same as survey” and
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such other customary survey-related endorsements as the Administrative Agent may reasonably request), (iii) deliver (A) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such real property and (B) in the event such property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, deliver (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower Agent, (y) evidence of flood insurance with a financially sound and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and otherwise reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any joint venture formed or acquired by any Loan Party after the Effective Date, pledge to the Administrative Agent, for the benefit of the Secured Parties, all the Capital Stock or other equity interests owned by any Loan Party in such joint venture pursuant to the Guarantee and Collateral Agreement; provided that if and only if such Loan Party is not permitted to pledge such Capital Stock or other equity interests under the limited liability company agreement, limited partnership agreement, joint venture agreement, general partnership agreement or other applicable organizational documents of such joint venture, the applicable Borrower or other applicable Loan Party shall use commercially reasonable efforts to have such Capital Stock or other equity interests held at all times by a JV Holding Company.
(e) With respect to any deposit account (other than an Excluded Account) or securities account (x) owned or maintained by a Loan Party on the Effective Date, promptly (but in any event not later than 60 days after the Effective Date (or such later date as reasonably agreed by the Administrative Agent) or (y) opened or acquired by a Loan Party after the Effective Date (or that ceases to be an Excluded Account after the Effective Date), on or prior to the date such deposit account or securities account is opened or acquired (or ceases to be an Excluded Account), as applicable, execute and deliver to the Administrative Agent a Control Agreement with respect to such deposit account or securities account.
7.11 Broadcast License Subsidiaries.
(a) Unless the Borrowers shall reasonably determine with the consent of the Administrative Agent (such consent not to be unreasonably delayed, conditioned or withheld) that doing so would cause undue expense or effort for New Holdings or its Restricted Subsidiaries, and except with respect to the FCC Licenses listed on Schedule 7.11, cause all FCC Licenses for all Stations owned by New Holdings or its Restricted Subsidiaries (other than any Station which New Holdings or any Restricted Subsidiary has placed in a Divestiture Trust) to be held at all times by one or more Broadcast License Subsidiaries; provided that with regard to any FCC Licenses for Stations acquired by New Holdings or its Restricted Subsidiaries after the Effective Date, the foregoing requirement shall be deemed satisfied if such FCC Licenses are, promptly following the acquisition of the respective Stations, assigned to and subsequently held by one or more Broadcast License Subsidiaries.
(b) Ensure that each Broadcast License Subsidiary engages only in the business of holding FCC Licenses and rights and activities related thereto.
(c) Ensure that the property of each Broadcast License Subsidiary is not commingled with the property of Parent, Intermediate Holdings, New Holdings or any Restricted Subsidiary other than Broadcast License Subsidiaries or otherwise remains clearly identifiable.
(d) Ensure that no Broadcast License Subsidiary has any Indebtedness, guarantees or other liabilities except for the liabilities expressly permitted to be incurred in accordance with the definition of “Broadcast License Subsidiary.”
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(e) Ensure that no Broadcast License Subsidiary creates, incurs, assumes or suffers to exist any Liens upon any of its property, assets, income or profits, whether now owned or hereafter acquired, except non-consensual Liens arising by operation of law.
7.12 [Reserved].
7.13 Ratings. Use commercially reasonable efforts to obtain and maintain a corporate family and/or corporate credit rating, as applicable, and ratings in respect of the Term Loans, in each case from each of S&P and Xxxxx’x.
7.14 Use of Proceeds. The Borrowers will use the proceeds of the Term Loans only as provided in subsection 5.8.
7.15 Anti-Corruption Laws and Sanctions. Intermediate Holdings and each Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by Intermediate Holdings, such Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
7.16 Designation of Subsidiaries. New Holdings may at any time and from time to time after the Effective Date designate any Restricted Subsidiary of New Holdings as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by written notice to the Administrative Agent; provided that (i) immediately before and after such designation, no Event of Default shall have occurred and be continuing, (ii) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, such designation shall constitute an Investment in such Unrestricted Subsidiary (calculated as an amount equal to the sum of (x) the fair market value of the Subsidiary designated immediately prior to such designation (such fair market value to be calculated without regard to any Obligations of such Subsidiary under the Guaranty and Collateral Agreement) and (y) the aggregate principal amount of any Indebtedness owed by the Subsidiary to New Holdings or any of its Subsidiaries immediately prior to such designation, all calculated, except as set forth in the parenthetical to clause (x) above, on a consolidated basis in accordance with GAAP), and such Investment shall be permitted under Section 8.7, (iii) following the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, New Holdings shall comply with the provisions of Section 7.10 with respect to such designated Restricted Subsidiary, (iv) no Restricted Subsidiary may be a Subsidiary of an Unrestricted Subsidiary, (v) the Borrower Agent may not be designated an Unrestricted Subsidiary and (vi) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, each of (A) the Subsidiary to be so designated and (B) its Subsidiaries has not, at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of New Holdings or any Restricted Subsidiary (other than equity interests in an Unrestricted Subsidiary). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by New Holdings in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of New Holding’s Investment in such Subsidiary. Such designation shall be permitted only if an Investment in such amount would be permitted at such time, whether as a Restricted Payment and/or a permitted Investment, and if such Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.”
SECTION 8. NEGATIVE COVENANTS
From and after the Effective Date, each Borrower hereby agrees that it shall not, and shall not permit any of its Restricted Subsidiaries to (and Intermediate Holdings hereby agrees, solely with respect to subsection 8.17, that it shall not), directly or indirectly so long as any Term Loan or Note remains outstanding and unpaid or any other amount is owing to any Lender (other than indemnities and other contingent liabilities not then due and payable that survive repayment of the Term Loans) or the Administrative Agent hereunder:
8.1 [Reserved].
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8.2 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Loan Parties under this Agreement (including any Incremental Term Loan);
(b) Indebtedness of New Holdings to any Restricted Subsidiary and of any Restricted Subsidiary to any other Restricted Subsidiary; provided that (i) any such Indebtedness owed by a Loan Party to a Person that is not a Loan Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent and (ii) Indebtedness of Restricted Subsidiaries that are not Borrowers or Subsidiary Guarantors to any Borrower or any Subsidiary Guarantor must also be permitted under subsection 8.7;
(c) Indebtedness of New Holdings or any of its Restricted Subsidiaries in respect of any foreign currency exchange contracts, interest rate swap arrangements or other derivative contracts or transactions, other than any such contracts, arrangements or transactions entered into by New Holdings or any of its Restricted Subsidiaries for speculative purposes;
(d) Indebtedness of New Holdings or any of its Restricted Subsidiaries consisting of reimbursement obligations under surety, indemnity, performance, release and appeal bonds, in each case required in the ordinary course of business or in connection with the enforcement of rights or claims of New Holdings and its Restricted Subsidiaries, and letters of credit obtained in support thereof in the ordinary course of business;
(e) existing Indebtedness of New Holdings or any of its Restricted Subsidiaries listed on Schedule 8.2 hereto including any extension or renewals or Permitted Refinancing thereof, provided that the principal amount thereof is not increased;
(f) any Indebtedness of any Person that becomes a Restricted Subsidiary in connection with a Permitted Acquisition after the Effective Date, (ii) any Indebtedness of any Person that is assumed by a Restricted Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in connection with a Permitted Acquisition after the Effective Date, and (iii) any Permitted Refinancing in respect of any Indebtedness set forth in the immediately preceding clauses (i) and (ii); provided that (x) in the case of clauses (i) and (ii) such Indebtedness exists at the time of such Permitted Acquisition and is not created in contemplation of or in connection with such Permitted Acquisition, (y) the aggregate outstanding principal amount of all Indebtedness of Restricted Subsidiaries that are not Borrowers or Subsidiary Guarantors outstanding under this clause (f) shall not exceed, at any time, the greater of (A) $100,000,000 and (B) 4.5% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (z) no Group Member (other than such Person that becomes a Restricted Subsidiary of New Holdings or the Restricted Subsidiary, as the case may be, that so assumes such Person’s Indebtedness) shall guarantee or otherwise become liable for the payment of such Indebtedness;