AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this “Amendment”) is entered into as of January 5, 2022, among National CineMedia, LLC, a Delaware limited liability company (the “Borrower”), JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative agent (in such capacity, the “Administrative Agent”) and each of the Lenders (as defined below) party hereto.
R E C I T A L S:
A. The Borrower, the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent are parties to the Credit Agreement dated as of June 20, 2018 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of April 30, 2020, that certain Amendment No. 2 to Credit Agreement, dated as of March 8, 2021, and as further amended, restated, amended and restated, extended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”).
B. The Borrower has requested an amendment to the Credit Agreement that would effect certain modifications thereto as set forth herein. The Administrative Agent and each Lender party hereto, which constitutes the Required Lenders, Majority Revolving Credit Facility Lenders and the Majority Term Loan Facility Lenders, consents to this Amendment.
C. Accordingly, in consideration of the premises made hereunder, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1.Definitions and Interpretation.
1.1Definitions. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meanings given to them in the Credit Agreement as amended by this Amendment (the “Amended Credit Agreement”).
1.2Interpretation. This Amendment shall be construed and interpreted in accordance with the rules of construction set forth in Sections 1.2 of the Amended Credit Agreement.
Section 2.Amendments to Loan Documents. Effective as of the Amendment No. 3 Effective Date, 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 underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto. References in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Credit Agreement as amended hereby.
Section 3.Conditions to Effectiveness. This Amendment shall be legal, valid and binding on (and as of) the date hereof, and subject to the last paragraph of this Section 3, the amendments implemented pursuant to Section 2 hereof shall become effective immediately upon the time at which the following conditions precedent are satisfied or waived by the Administrative Agent at the
direction of the Required Lenders (the date of such satisfaction, the “Amendment No. 3 Effective Date”):
(a)The Administrative Agent shall have received each of the following, each in form and substance reasonably satisfactory to the Required Lenders and the Majority Term Loan Facility Lenders:
(i)counterparts of this Amendment duly executed by the Borrower, the Administrative Agent, the Lenders that constitute the Required Lenders; and
(ii) (A) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (B) such documents and certificates (including applicable organizational documents) and, if applicable, good standing certificates in the jurisdiction of organization of the applicable Loan Party) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized and formed, and that each of them is validly existing and in good standing, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.
(b)Fees and Expenses. The Borrower shall have paid the following costs, fees and expenses: (i) applicable consent fees (if any) owed to Lenders constituting the Required Lenders (such Lenders constituting Required Lenders as determined by Borrower) pursuant to that certain Engagement Letter dated as of December 10, 2021, between the Borrower and JPMorgan (the “Engagement Letter”), (ii) fees and expenses owed to JPMorgan (or its applicable Affiliate) relating to this Amendment No. 3 pursuant to the Engagement Letter, (iii) the reasonable and documented costs, fees and expenses owed to Xxxxxx, Xxxx & Xxxxxxxx LLP, as legal counsel to a certain ad hoc group of lenders, and BDO Consulting Group, LLC, as financial advisor to a certain ad hoc group of lenders, in each case to the extent invoiced in writing delivered to the Borrower at least one (1) Business Day prior to the date hereof and (iv) the reasonable and documented costs, fees and expenses owed to Milbank LLP, as legal counsel to the Administrative Agent, in each case to the extent invoiced in writing delivered to the Borrower at least one (1) Business Day prior to the date hereof.
(c)Legal Opinion. The Administrative Agent shall have received (i) a favorable and customary written opinion of Xxxxx Xxxx & Xxxxxxxx LLP, as counsel for the Borrower and (ii) a favorable and customary written opinion of Potter Xxxxxxxx & Xxxxxxx, as special Delaware counsel for the Borrower.
(d)Revolving Credit Agreement. The Borrower shall substantially concurrently enter into that certain Revolving Credit Agreement, to be dated as of the Amendment No. 3 Effective Date, among the Borrower, the lenders party thereto from time to time, Wilmington Savings Fund Society, FSB, as administrative agent and the other parties thereto.
(e)Officer’s Certificate. The Borrower shall have prepared and provided to the Administrative Agent a customary certificate certifying to the matters set forth in Sections 4.5 and 4.6 (below).
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Notwithstanding the foregoing, for purposes of determining compliance with, and satisfaction of, the conditions specified in this Section 3, the Administrative Agent and each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder (except with respect to confirmation of receipt of the funds by the Administrative Agent and the professional advisors specified in Section 3(b) hereof, any waiver of which shall be as determined by the Administrative Agent (on behalf of itself or any Person for whom such amount is for the benefit of) or any professional advisor owed such amount). The Administrative Agent shall notify the Borrower and the Lenders of the Amendment No. 3 Effective Date, and such notice shall be conclusive and binding.
Section 4.Representations and Warranties. The Borrower represents and warrants to the Administrative Agent and the Lenders party hereto as follows:
4.1Power and Authority. It has the limited liability company power and authority to, and the legal right to, make, execute and deliver this Amendment and to perform its obligations under this Amendment and under the Amended Credit Agreement and other Loan Documents to which it is a party.
4.2Authorization. It has taken all proper and necessary limited liability company action to authorize the execution, delivery and performance of this Amendment and the other transactions contemplated hereby and the performance of the Amended Credit Agreement and the other Loan Documents and to authorize the borrowings on the terms and conditions of this Amendment.
4.3Non-Violation. The execution and delivery of this Amendment and the performance and observance by it of the provisions hereof do not and will not (i) violate the Organizational Documents of the Borrower, (ii) violate any Requirement of Law of the Borrower or any of its Subsidiaries, as such may be applicable to or binding on each except, to the extent any such violations, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (iii) constitute a default under any Contractual Obligations of the Borrower or any of its Subsidiaries, as such may be applicable to or binding on each, except to the extent such default could not reasonably be expected to result in a Material Adverse Effect, and (iv) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any such Requirement of Law or any such Contractual Obligation (other than the Liens permitted by the Amended Credit Agreement).
4.4Validity and Binding Effect. This Amendment has been duly executed and delivered by the Borrower. On the Amendment No. 3 Effective Date, this Amendment shall constitute a legal, valid and binding obligation of each Loan Party that is a party hereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
4.5Representations and Warranties in Credit Agreement. After giving effect to this Amendment, the representations and warranties of each Loan Party contained in the Amended Credit Agreement and each Loan Document are true and correct in all material respects as of the Amendment No. 3 Effective Date; provided, that to the extent that such representations and warranties specifically relate to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
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4.6No Event of Default. On the Amendment No. 3 Effective Date, both immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred or is continuing.
4.7No Consent. No consent, exemption, authorization or approval of, registration or filing with, notice or any other action by, any Governmental Authority or any other Person is required on the part of or with respect to the Borrower in connection with this Amendment, or the execution, delivery, performance, validity or enforceability of this Amendment or any other Loan Document, except consents, authorizations, filings and notices which have been obtained or made and are in full force and effect.
Section 5.Reaffirmation of Agreements and Security Interest. The Borrower hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document (including the Guarantee and Collateral Agreement) to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby, (ii) [reserved] and (iii) its grant of Liens on the Collateral to the Collateral Agent for the benefit of the Lenders to secure the prompt payment and performance in full when due of the Obligations pursuant to the Security Documents.
Section 6.Miscellaneous.
6.1Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
6.2Survival of Representations and Warranties. All representations and warranties made hereunder shall survive the execution and delivery of this Amendment, and no investigation by the Administrative Agent or the Lenders or any subsequent extension of credit shall affect any of such representations and warranties or the right of the Administrative Agent or any Lender to rely upon them.
6.3Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
6.4Headings. The headings, captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
6.5Loan Documents Unaffected. Each Loan Party acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect as amended on the date hereof and that all of its obligations thereunder shall be valid and enforceable (except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law)) and shall not be impaired or limited by the execution or effectiveness of this Amendment. On and after the Amendment No. 3 Effective Date, the parties confirm and acknowledge with respect to each Loan Document not amended or modified restated in connection with the Amendment that unless the context otherwise requires (i) each reference in such Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import shall be a reference to the Credit Agreement as amended by the Amendment, and as such agreement may be otherwise amended, amended and restated, modified or supplemented and in effect from time to time and (ii) the definition of any term defined in any such Loan Document by reference to the terms defined in the “Credit Agreement”
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shall reference the defined terms in the Credit Agreement, as amended hereby, as the same may be otherwise amended, amended and restated, modified or supplemented and in effect from time to time. This Amendment is a Loan Document.
6.6Waiver of Claims. The Borrower hereby acknowledges and agrees that, through the date hereof, each of the Administrative Agent and the Lenders has acted in good faith and has conducted itself in a commercially reasonable manner in its relationships with the Borrower in connection with the Obligations, the Credit Agreement, and the other Loan Documents, and, to the maximum extent permitted by applicable law, the Borrower hereby waives and releases any claims to the contrary with respect to the period through the Amendment No. 3 Effective Date. To the maximum extent permitted by applicable law, the Borrower hereby releases, acquits and forever discharges the Administrative Agent and each of the Lenders, their respective Affiliates, and their respective officers, directors, employees, agents, attorneys, advisors, successors and assigns, both present and former, from any and all claims and defenses, known or unknown as of the date hereof, with respect to the Obligations, this Amendment, the Credit Agreement, the other Loan Documents and the transactions contemplated hereby and thereby.
6.7Fees and Expenses. The Borrower hereby agrees to pay in full in cash all reasonable and documented out-of-pocket fees and expenses payable to Xxxxxx, Xxxx & Xxxxxxxx LLP incurred by Xxxxxx, Xxxx & Xxxxxxxx LLP in connection with the negotiation, documentation and execution and delivery of Amendment No. 3.
6.8Agent Direction. The Administrative Agent (in its capacities as the Administrative Agent and the collateral agent for the Secured Parties) is hereby authorized and directed to execute and deliver the Representative Supplement (as defined in the Amended Credit Agreement) substantially in the form attached hereto as Exhibit B.
6.9Entire Agreement. This Amendment, together with the Credit Agreement and the other Loan Documents, integrates all the terms and conditions mentioned herein or incidental hereto and supersedes all oral representations and negotiations and prior writings with respect to the subject matter hereof.
6.10Counterparts. This Amendment may be executed in any number of counterparts, each of which will be an original and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic transmission (including in “.pdf” format) will be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in this Amendment or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
6.11GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
6.12Notices; Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial. The provisions set forth in Sections 10.2, 10.12 and 10.18 of the Credit Agreement are
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hereby incorporated mutatis mutandis with all references to the “Agreement” therein being deemed references to this Amendment.
[Remainder of page blank; signatures follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
NATIONAL CINEMEDIA, LLC,
as Borrower
as Borrower
By its manager, National CineMedia, Inc.
By: | /s/ Xxx Xxxxxxxx | |||||||
Name: | Xxx Xxxxxxxx | |||||||
Title: | CEO |
[Signature Page to Amendment No. 3 to Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Lender
as Administrative Agent and as a Lender
By: | /s/ Xxxxxxxxx X. XxXxxxx | |||||||
Name: | Xxxxxxxxx X. XxXxxxx | |||||||
Title: | Vice President |
[Signature Page to Amendment No. 3 to Credit Agreement]
ROYAL BANK OF CANADA,
as a Lender
By: | /s/ Xxxxx Xxxx | |||||||
Name: | Xxxxx Xxxx | |||||||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 to Credit Agreement]
BARCLAYS BANK PLC,
as a Lender
By: | /s/ Xxxx Xxxxxx | |||||||
Name: | Xxxx Xxxxxx | |||||||
Title: | Vice President |
[Signature Page to Amendment No. 3 to Credit Agreement]
ABRY ADVANCED SECURITIES FUND III, L.P., as a Lender
By: ABRY ASF Investors III, L.P.
Its: General Partner
By: ABRY Advanced Securities Holdings III, LLC
Its; General Partner
By: | /s/ Xxxx Xxxxxx | |||||||
Name: | Xxxx Xxxxxx | |||||||
Title: | Authorized Person |
[Signature Page to Amendment No. 3 to Credit Agreement]
Apollo Trading LLC,
as a Lender
By: | /s/ Xxxxxx Xxxxxxxx | |||||||
Name: | Xxxxxx Xxxxxxxx | |||||||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 to Credit Agreement]
Appalachian Funding LLC,
as a Lender
By: | /s/ Xxxxxx Xxxxxxxx | |||||||
Name: | Xxxxxx Xxxxxxxx | |||||||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 to Credit Agreement]
Casaloma Loan Funding 1 LLC,
as a Lender
By: | /s/ Xxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx | |||||||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 to Credit Agreement]
MALAGA LLC,
as a Lender
By: | /s/ Xxxxxxx Xxxx | |||||||
Name: | Xxxxxxx Xxxx | |||||||
Title: | Senior Associate |
[Signature Page to Amendment No. 3 to Credit Agreement]
Aon Collective Investment Trust - Multi-Asset Credit Fund, as a Lender
By: Xxxx Capital Credit, LP, as Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
AVAW Loans Sankaty z.H. Internationale Kapitalanlagegesellschaft mbH, as a Lender
By: Xxxx Capital Credit, LP, as a Manager z.H.
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxxx Point VI CLO, Limited, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxxx Point VII CLO, Limited, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Baloise Senior Secured Loan Fund II, as a Lender
By: Xxxx Capital Credit, LP, as Sub Investment Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
[Signature Page to Amendment No. 3 to Credit Agreement]
Xxxx Capital Credit CLO 2016-2, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2017-1, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2017-2, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2018-1, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2018-2, Limited, as a Lender
[Signature Page to Amendment No. 3 to Credit Agreement]
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2019-1, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2019-2, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2019-3, Limited, as a Lender
By: Xxxx Capital Credit CLO Advisors, LP, as Collateral Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2019-4, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2020-1, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2020-2, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2020-3, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2021-1, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2021-2, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit CLO 2021-4, Limited, as a Lender
By: Xxxx Capital Credit U.S. CLO Manager, LLC, its Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
CMAC Fund 1, L.P., as a Lender
By: Xxxx Capital Credit Managed Account Investors (CMAC Fund 1), LLC, its general partner
By: Xxxx Capital Credit Member II, Ltd., its manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Suzuka INKA, as a Lender
By: Xxxx Capital Credit, LP, as Fund Manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxxxxx Institutional Access Credit Fund, as a Lender
By: BCSF Advisors, LP, as Sub-Adviser
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Future Fund Board of Guardians, as a Lender
By: Xxxx Capital Credit, LP, as Fund Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit Managed Account (FSS), L.P., as a Lender
By: Xxxx Capital Credit Managed Account Investors (FSS), L.P., its general partner
By: Xxxx Capital Credit Member, LLC, its general partner
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Government Employees Superannuation Board, as a Lender
By: Xxxx Capital Credit, LP, as Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
[Signature Page to Amendment No. 3 to Credit Agreement]
Xxxx Capital I ICAV acting in respect of and for the account of its sub fund Global Loan, Fund, as a Lender
By: | /s/ Xxx Xxxxxxx | |||||||
Name: | Xxxxxx Xxxxx Xxxxxxx | |||||||
Title: | Director |
Xxxx Capital Credit Dislocation Fund (B), L.P.,
as a Lender
By: Xxxx Capital Credit Dislocation
Fund General Partner, LLC
Its: general partner
By Xxxx Capital Credit Member II, Ltd.
its manager
By: | /s/ Xxxxx Xxxxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx Dornaus | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Floating Rate Income Fund, a series of Xxxx Xxxxxxx Funds II, as a Lender
By: BCSF Advisors, LP, its Subadviser
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Los Angeles County Employees Retirement Association, as a Lender
By: Xxxx Capital Credit, LP, as Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Future Fund Board of Guardians for and on behalf of Medical Research Future Fund, as a Lender
By: Xxxx Capital Credit, LP, as Investment Manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit Managed Account (PSERS), L.P., as a Lender
By: Xxxx Capital Credit Managed Account Investors, LLC, its general partner
By: Xxxx Capital Credit Member, LLC, its manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Retail Employees Superannuation Trust, as a Lender
By: Xxxx Capital Credit, LP, as Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Race Point X CLO, Limited, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Race Point IX CLO, Limited, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Race Point VIII CLO, Limited, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
San Francisco City and County Employees’ Retirement System, as a Lender
By: Xxxx Capital Credit, LP, as Portfolio Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital High Income Partnership, L.P., as a Lender
By: Xxxx Capital High Income Investors, L.P.
By: Xxxx Capital Credit Member, LLC, its general partner
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Senior Loan Fund, L.P., as a Lender
By: Xxxx Capital Senior Loan Investors, LLC, its general partner
By: Xxxx Capital Credit Member, LLC, its manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Senior Loan Fund (SRI), L.P., as a Lender
By: Xxxx Capital Senior Loan Investors (SRI), L.P., its general partner
By: Xxxx Capital Credit Member, LLC, its general partner
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Sunsuper Pooled Superannuation Trust, as a Lender
By: Xxxx Capital Credit, LP, as Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Credit Managed Account (Xxxxxx), L.P., as a Lender
By: Xxxx Capital Credit Managed Account Investors (Xxxxxx), LLC, its general partner
By: Xxxx Capital Credit Member, LLC, its manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, XX |
Xxxx Capital Total Return Credit, L.P., as a Lender
By: Xxxx Capital Total Return Credit General Partner, LLC, its general partner
By: Xxxx Capital Credit Member, LLC, its manager
[Signature Page to Amendment No. 3 to Credit Agreement]
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
Blue Cross of California, as a Lender
By: Xxxx Capital Credit, LP, as Investment Manager
By: | /s/ Xxxxx Xxxxxxx Dornaus | |||||||
Name: | Xxxxx Xxxxxxx Xxxxxxx | |||||||
Title: | Managing Director/CFO-Xxxx Capital Credit, LP |
[Signature Page to Amendment No. 3 to Credit Agreement]
Carlyle Investment Management L.L.C.
Signed for and on behalf of:
Carlyle C17 CLO, Ltd.
Carlyle Global Market Strategies CLO 2012-4, Ltd.
Carlyle Global Market Strategies CLO 2014-3-R, Ltd.
Carlyle Global Market Strategies CLO 2015-5, Ltd.
Carlyle Global Market Strategies CLO 2016-3, Ltd.
Carlyle US CLO 2018-1, Ltd.
Carlyle US CLO 2018-2, Ltd.
Carlyle US CLO 2018-4, Ltd.
as a Lender
By: | /s/ Xxxxx Xxxxxxxx | |||||||
Name: | Xxxxx Xxxxxxxx | |||||||
Title: | Managing Director |
[Signature Page to Amendment No. 3 to Credit Agreement]
Fernwood Associates LLC,
as a Lender
By: | /s/ Xxxxx Xxxxx | |||||||
Name: | Xxxxx Xxxxx | |||||||
Title: | Managing Director |
[Signature Page to Amendment No. 3 to Credit Agreement]
Fernwood Foundation Fund LLC,
as a Lender
By: | /s/ Xxxxx Xxxxx | |||||||
Name: | Xxxxx Xxxxx | |||||||
Title: | Director |
[Signature Page to Amendment No. 3 to Credit Agreement]
Fernwood Restructurings Limited,
as a Lender
By: | /s/ Xxxxx Xxxxx | |||||||
Name: | Xxxxx Xxxxx | |||||||
Title: | Director |
[Signature Page to Amendment No. 3 to Credit Agreement]
VOYA INVESTMENT TRUST CO. – SENIOR LOAN COMMON TRUST FUND
VOYA INVESTMENT TRUST CO. – SENIOR LOAN TRUST FUND
as Term Loan Lender
By: Voya Investment Trust Co., as Trustee
By: | /s/ Xxxxxx Xxxxxx | |||||||
Name: | Xxxxxx Xxxxxx | |||||||
Title: | Senior Vice President |
[Signature Page to Amendment No. 3 to Credit Agreement]
VOYA SENIOR INCOME FUND
VOYA FLOATING RATE FUND
VOYA STRATEGIC INCOME OPPORTUNITIES FUND
MEDTRONIC HOLDINGS Sarl,
each, as Term Loan Lender
By: Voya Investment Management Co. LLC, as Investment Manager
By: | /s/ Xxxxxx Xxxxxx | |||||||
Name: | Xxxxxx Xxxxxx | |||||||
Title: | Senior Vice President |
[Signature Page to Amendment No. 3 to Credit Agreement]
VOYA CREDIT OPPORTUNITIES MASTER FUND
VOYA CLO 2014-2, LTD.
VOYA CLO 2014-3, LTD.
VOYA CLO 2014-4, LTD.
VOYA CLO 2015-1, LTD.
VOYA CLO 2015-2, LTD.
VOYA CLO 2015-3, LTD.
VOYA CLO 2016-1, LTD.
VOYA CLO 2016-2, LTD.
VOYA CLO 2016-3, LTD.
VOYA CLO 2016-4, LTD.
VOYA CLO 2017-1, LTD.
VOYA CLO 2017-2, LTD.
VOYA CLO 2017-3, LTD.
VOYA CLO 2017-4, LTD.
VOYA CLO 2018-1, LTD.
VOYA CLO 2018-2, LTD.
VOYA CLO 2018-3, LTD.
VOYA CLO 2018-4, LTD.
VOYA CLO 2019-1, LTD.
VOYA CLO 2019-2, LTD.
VOYA CLO 2019-3, LTD.
VOYA CLO 2019-4, LTD.
VOYA CLO 2020-1, LTD.
VOYA CLO 2020-2, LTD.
VOYA CLO 2020-3, LTD.
each, as Term Loan Lender
By: Voya Alternative Asset Management LLC, as Investment Manager
By: | /s/ Xxxxxx Xxxxxx | |||||||
Name: | Xxxxxx Xxxxxx | |||||||
Title: | Senior Vice President |
[Signature Page to Amendment No. 3 to Credit Agreement]
Xxxxxx Limited,
as a Lender
By: | /s/ Xxxxx Xxxxxxx | |||||||
Name: | Xxxxx Xxxxxxx | |||||||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 3 to Credit Agreement]
EXHIBIT A
Amended Credit Agreement
[See Attached]
CREDIT AGREEMENT
as amended by that certain Amendment No. 1 to Credit Agreement, dated as of April 30, 2020 and, that certain Amendment No. 2 to Credit Agreement, dated as of March 8, 2021 and that certain Amendment No. 3 to Credit Agreement, dated as of January 5, 2022
as amended by that certain Amendment No. 1 to Credit Agreement, dated as of April 30, 2020 and, that certain Amendment No. 2 to Credit Agreement, dated as of March 8, 2021 and that certain Amendment No. 3 to Credit Agreement, dated as of January 5, 2022
among
NATIONAL CINEMEDIA, LLC,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
from Time to Time Parties Hereto,
JPMORGAN CHASE BANK, N.A.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
RBC CAPITAL MARKETS1,
as Joint Lead Arrangers and Joint Bookrunners,
as Joint Lead Arrangers and Joint Bookrunners,
BARCLAYS BANK PLC,
as a Joint Bookrunner,
ZB, N.A. dba VECTRA BANK COLORADO,
as Co-Manager,
as Co-Manager,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
as Administrative Agent
Dated as of June 20, 2018 |
1 RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.
36
TABLE OF CONTENTS
CONTENTS
Page
SECTION 1. DEFINITIONS | |||||
1.1 Defined Terms | |||||
1.2 Other Definitional Provisions | 4051 | ||||
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS | 4253 | ||||
2.1 Term Loan Commitments | 4253 | ||||
2.2 Procedure for Term Loan Borrowing | 4254 | ||||
2.3 Repayment of Term Loans | 4354 | ||||
2.4 Revolving Credit Commitments | 4354 | ||||
2.5 Procedure for Revolving Credit Borrowing | 4355 | ||||
2.6 Swing Line Commitment | 4455 | ||||
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans | 4456 | ||||
2.8 Repayment of Loans; Evidence of Debt | 4657 | ||||
2.9 Commitment Fees, etc | 4758 | ||||
2.10 Termination or Reduction of Revolving Credit Commitments | 4759 | ||||
2.11 Optional Prepayments | 4759 | ||||
2.12 Mandatory Prepayments | 5670 | ||||
2.13 Conversion and Continuation Options | 5771 | ||||
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches | 5872 | ||||
2.15 Interest Rates and Payment Dates | 5872 | ||||
2.16 Computation of Interest and Fees | 5972 | ||||
2.17 Inability to Determine Interest Rate | 5973 | ||||
2.18 Pro Rata Treatment and Payments | 6074 | ||||
2.19 Increased Costs | 6377 | ||||
2.20 Taxes | 6478 | ||||
2.21 Indemnity | 6882 | ||||
2.22 Illegality | 6983 | ||||
2.23 Change of Lending Office | 6983 | ||||
2.24 Replacement of Lenders under Certain Circumstances; Defaulting Lenders | 7084 | ||||
2.25 Incremental Credit Extensions. | 7489 | ||||
2.26 [Reserved] | 7890 |
i
2.27 Extensions of Revolving Credit Loans and Term Loans and revolving Credit Commitments and Replacement Revolving Credit Loans and Replacement Term Loans and Replacement Revolving Credit Commitments | 8090 | ||||
2.28 Replacement of Facilities | 8494 | ||||
SECTION 3. LETTERS OF CREDIT | 8596 | ||||
3.1 L/C Commitment | 8596 | ||||
3.2 Procedure for Issuance of Letter of Credit | 8696 | ||||
3.3 Fees and Other Charges | 8697 | ||||
3.4 L/C Participations | 8797 | ||||
3.5 Reimbursement Obligation of the Borrower | 8899 | ||||
3.6 Obligations Absolute | 8899 | ||||
3.7 Letter of Credit Payments | 89100 | ||||
3.8 Applications | 89100 | ||||
SECTION 4. REPRESENTATIONS AND WARRANTIES | 89100 | ||||
4.1 Financial Condition | 89100 | ||||
4.2 No Change | 90100 | ||||
4.3 Corporate Existence; Compliance with Law | 90100 | ||||
4.4 Power; Authorization; Enforceable Obligations | 90101 | ||||
4.5 No Legal Bar | 91101 | ||||
4.6 No Material Litigation | 91102 | ||||
4.7 No Default | 91102 | ||||
4.8 Ownership of Property; Liens | 91102 | ||||
4.9 Intellectual Property | 91102 | ||||
4.10 Taxes | 92102 | ||||
4.11 Federal Regulations | 92103 | ||||
4.12 Labor Matters | 92103 | ||||
4.13 ERISA | 92103 | ||||
4.14 Investment Company Act; Other Regulations | 93104 | ||||
4.15 Subsidiaries | 93104 | ||||
4.16 Use of Proceeds | 93104 | ||||
4.17 Environmental Matters | 93104 | ||||
4.18 Accuracy of Information, etc. | 94105 | ||||
4.19 Security Documents | 94105 | ||||
4.20 Solvency | 95106 | ||||
4.21 Certain Documents | 95106 | ||||
4.22 Anti-Corruption Laws; Anti-Money Laundering Laws; Sanctions. | 95106 | ||||
4.23 EEA Financial Institution | 96107 |
SECTION 5. CONDITIONS PRECEDENT | 96107 | ||||
5.1 Conditions to Initial Extension of Credit | 96107 | ||||
5.2 Conditions to Each Extension of Credit | 97108 | ||||
5.3 Conditions to New Incremental Loans | 108 | ||||
SECTION 6. AFFIRMATIVE COVENANTS | 97109 | ||||
6.1 Financial Statements | 97109 | ||||
6.2 Certificates; Other Information | 98110 | ||||
6.3 Payment of Obligations | 99111 | ||||
6.4 Conduct of Business and Maintenance of Existence; Compliance | 99111 | ||||
6.5 Maintenance of Property; Insurance | 100112 | ||||
6.6 Inspection of Property; Books and Records; Discussions | 100112 | ||||
6.7 Notices | 101113 | ||||
6.8 Environmental Laws | 102114 | ||||
6.9 [Reserved] | 102114 | ||||
6.10 Additional Collateral, Further Assurances, etc | 102114 | ||||
6.11 Approved Deposit Accounts; Control Agreements | 116 | ||||
6.12 Ratings | 117 | ||||
6.13 Conference Calls | 118 | ||||
6.14 No "Unrestricted Subsidiaries" | 118 | ||||
6.15 Cash Distributions | 118 | ||||
SECTION 7. NEGATIVE COVENANTS | 104118 | ||||
7.1 Financial Condition Covenant | 104118 | ||||
7.2 Limitation on Indebtedness | 105119 | ||||
7.3 Limitation on Liens | 107122 | ||||
7.4 Limitation on Fundamental Changes | 110125 | ||||
7.5 Limitation on Disposition of Property | 110126 | ||||
7.6 Limitation on Restricted Payments | 112128 | ||||
7.7 [Reserved] | 113 | ||||
7.7 Limitation on Certain Prepayments | 130 | ||||
7.8 Limitation on Investments | 113131 | ||||
7.9 Limitation on Amendments to Other Documents | 115134 | ||||
7.10 Limitation on Transactions with Affiliates | 116134 | ||||
7.11 Limitation on Sales and Leasebacks | 116135 | ||||
7.12 Limitation on Changes in Fiscal Periods | 116135 |
7.13 Limitation on Negative Pledge Clauses and Restrictions on Subsidiary Distributions | 116135 | ||||
7.14 [Reserved] | 117136 | ||||
7.15 Limitation on Lines of Business | 117136 | ||||
7.16 Sanctions; Anti-Corruption Use of Proceeds | 117136 | ||||
7.17 Minimum Liquidity Covenant | 136 | ||||
7.18 Bank Accounts | 136 | ||||
SECTION 8. EVENTS OF DEFAULT | 117137 | ||||
SECTION 9. THE ADMINISTRATIVE AGENT | 120140 | ||||
9.1 Appointment | 120140 | ||||
9.2 Delegation of Duties | 121141 | ||||
9.3 Exculpatory Provisions | 121141 | ||||
9.4 Reliance by the Administrative Agent | 121141 | ||||
9.5 Notice of Default | 122142 | ||||
9.6 Non-Reliance on the Administrative Agent and Other Lenders | 122142 | ||||
9.7 Indemnification | 123143 | ||||
9.8 Administrative Agent in Its Individual Capacity | 123143 | ||||
9.9 Successor Administrative Agent | 123143 | ||||
9.10 Authorization to Release Liens and Guarantees | 124144 | ||||
9.11 The Lead Arrangers; the Bookrunners; the Co-Manager | 124144 | ||||
9.12 Withholding | 124144 | ||||
9.13 Certain ERISA Matters. | 124144 | ||||
SECTION 10. MISCELLANEOUS | 127147 | ||||
10.1 Amendments and Waivers | 127147 | ||||
10.2 Notices | 130152 | ||||
10.3 No Waiver; Cumulative Remedies | 132153 | ||||
10.4 Survival of Representations and Warranties | 132154 | ||||
10.5 Payment of Expenses | 132154 | ||||
10.6 Successors and Assigns; Participations and Assignments | 134156 | ||||
10.7 Adjustments; Set-off | 140162 | ||||
10.8 Counterparts | 140162 | ||||
10.9 Severability | 140163 | ||||
10.10 Integration | 141163 | ||||
10.11 GOVERNING LAW | 141163 | ||||
10.12 Submission To Jurisdiction; Waivers | 141163 |
10.13 Acknowledgments | 142164 | ||||
10.14 Confidentiality | 143165 | ||||
10.15 Release of Collateral and Guarantee Obligations | 144166 | ||||
10.16 Accounting Changes | 144167 | ||||
10.17 Delivery of Lender Addenda | 145167 | ||||
10.18 WAIVERS OF JURY TRIAL | 145167 | ||||
10.19 Intercreditor Agreement | 145167 | ||||
10.20 Acknowledgement and Consent to Bail-In of EEA Affected Financial Institution. | 145168 | ||||
10.21 Acknowledgement Regarding Any Supported QFCs | 168 |
Schedules
Schedule 2.1 Lenders and Initial Term Loan Commitments
Schedule 2.3 Lenders and Revolving Credit Commitments
Schedule 4.19(a)(i) UCC Filing Office
Schedule 4.19(a)(ii) Existing UCC Financing Statements To Remain On File After Closing Date
Schedule 4.19(a)(iii) Existing UCC Financing Statements To Be Terminated On or Before Closing Date
Schedule 6.11 Accounts
Schedule 7.2(d) Indebtedness
Schedule 7.3(f) Liens
Schedule 7.10 Affiliate Transactions
Schedule 7.13 Restrictive Agreements
Exhibits
Exhibit A Form of Borrowing Notice
Exhibit B Form of Compliance Certificate
Exhibit C Form of Lender Addendum
Exhibit D-1 Form of Term Note
Exhibit D-2 Form of Revolving Credit Note
Exhibit D-3 Form of Swing Line Note
Exhibit E-1 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit E-2 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit E-3 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-4 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit F Form of Assignment and Acceptance
v
CREDIT AGREEMENT, dated as of June 20, 2018, among National CineMedia, LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”), and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), as amended by that certain Amendment No. 1 to Credit Agreement, dated as of April 30, 2020 and, that certain Amendment No. 2 to Credit Agreement, dated as of March 8, 2021 and that certain Amendment No. 3 to Credit Agreement, dated as of January 5, 2022.
W I T N E S S E T H:
WHEREAS, the Borrower has requested (a) the Term Loan Lenders (as defined herein) to extend credit in the form of new Term Loans on the Closing Date, in an aggregate principal amount of $270,000,000, and (b) the Revolving Credit Lenders (as defined herein) continue to extend credit to the Borrower in the form of a Revolving Credit Facility in an aggregate amount of $175,000,000 as of the date hereof;
WHEREAS, the proceeds of the Term Loans made on the Closing Date will be permitted to be used (i) to repay in full all existing term loans outstanding under the Existing Credit Agreement and (ii) to pay fees and expenses incurred in connection with the foregoing (collectively, the “Transaction”);
WHEREAS, the proceeds of the Revolving Credit Loans will be permitted to be used (i) for working capital and general corporate purposes of the Borrower and its Subsidiaries, and (ii) to fund acquisitions, Restricted Payments and other distributions permitted by Section 7.6, and for any other purpose not prohibited by this Agreement;
WHEREAS, the Lenders are willing to make such credit facilities available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1.DEFINITIONS
1.1Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
“Acceptable Discount” shall have the meaning as defined in Section 2.11(c)(iv).
“Acceptable Prepayment Amount” shall have the meaning as defined in Section 2.11(c)(iv).
“Acceptance Date” shall have the meaning as defined in Section 2.11(c)(iv).
“Acquisition” means as to any Person, (x) the acquisition of a majority of the Capital Stock of any other Person which have the ordinary voting power for the election of the board of directors (or equivalent governing body) of such other Person, (y) the acquisition of all or substantially all of the assets of any other Person or (z) the acquisition of all or substantially all of the assets constituting a business line or division of any other Person.
“Additional Lender” means at any time, any existing Lender or any other bank or other financial institution or other lender selected by the Borrower that agrees to provide any portion of any
1
Incremental Term Loans, Revolving Credit Commitment Increases or Replacement Revolving Credit Commitments.
“Adjusted Consolidated EBITDA” means as to the Borrower and its Subsidiaries for a particular period, the sum of:
(a)Consolidated EBITDA of Borrower and its Subsidiaries for such period; plus
(b)for each such period ending after the Closing Date, amounts received by the Borrower during such period pursuant to the Loews Agreement or other similar agreements to the extent such amounts are not otherwise included in determining Consolidated EBITDA of Borrower and its Subsidiaries under clause (a) of this definition for such period; plus
(c)for each such period ending after the Closing Date, the aggregate amount of cash payments received by the Borrower during such period pursuant to Section 4(b) of the Common Unit Adjustment Agreement to the extent such amounts are not otherwise included in determining Consolidated EBITDA of the Borrower and its Subsidiaries under clause (a) of this definition for such period.
“Adjustment Date” shall have the meaning as defined in the definition of “Pricing Grid.”
“Administrative Agent” shall have the meaning as defined in the preamble hereto.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person; provided that, for purposes of Section 7.10, an “Affiliate” shall not include any Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, any Founding Member Parent (excluding Holdings, each Subsidiary of Holdings and each Subsidiary of such Founding Member Parent). For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Affiliated Lender” means any Non-Debt Fund Affiliate, the Borrower, Holdings and any of its other Subsidiaries.
“Aggregate Exposure” means with respect to any Lender at any time, an amount equal to the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Credit Commitment then in effect or, if any Class of Revolving Credit Commitments of such Lender have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.
“Aggregate Exposure Percentage” means with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the sum of the Aggregate Exposures of all Lenders at such time.
2
“Agreement” means this Credit Agreement, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“All-in Yield” means, with respect to any Indebtedness, the yield of such Indebtedness, whether in the form of interest rate, margin, original issue discount, upfront fees, index floors or otherwise, in each case payable by the Borrower generally to lenders, provided that original issue discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity, and shall not include arrangement fees, structuring fees, ticking fees, commitment fees, unused line fees, underwriting fees and any amendment and similar fees (regardless of whether paid in whole or in part to the relevant lenders); provided, further, that with respect to Section 2.25, “All-in Yield” shall include any amendment, consent, or similar fee paid to the holders of Indebtedness (other than with respect to Loans hereunder) in connection with any amendment, consent or waiver related to the incurrence of the Indebtedness then being incurred under Section 2.25 (in each case assuming (and equated to) a four-year life to maturity).
“Amendment No. 1” means Amendment No. 1 to this Agreement dated as of April 30, 2020, among the Borrower, the Lenders party thereto and the Administrative Agent.
“Amendment No. 1 Effective Date” has the meaning assigned thereto in Amendment No 1.
“Amendment No. 2” means Amendment No. 2 to this Agreement dated as of March 8, 2021, among the Borrower, the Lenders party thereto and the Administrative Agent.
“Amendment No. 2 Effective Date” has the meaning assigned thereto in Amendment No. 2.
“Amendment No. 3” means Amendment No. 3 to this Agreement dated as of January 5, 2022, among the Borrower, the Lenders party thereto and the Administrative Agent.
“Amendment No. 3 Effective Date” has the meaning assigned thereto in Amendment No 3.
“Anti-Corruption Laws” shall have the meaning as defined in Section 4.22(b).
“Applicable Discount” shall have the meaning as defined in Section 2.11(c)(iii).
“Applicable Margin” means (a) with respect to any Initial Term Loan, (A) at all times prior to the Amendment No. 2 Effective Date, 2.00% in the case of Base Rate Loans and 3.00% in the case of Eurodollar Loans and (B) at all times on and after the Amendment No. 2 Effective Date, 3.00% in the case of Base Rate Loans and 4.00% in the case of Eurodollar Loans, (b) with respect to any Revolving Credit Loan, (A) at all times prior to the Amendment No. 2 Effective Date, as determined pursuant to the “Pricing Grid” (as defined in this Agreement prior to the Amendment No. 2 Effective Date; it being understood and agreed that, upon the Amendment No. 2 Effective Date and until adjusted on the next applicable Adjustment Date, the pricing level I indicated on the Pricing Grid shall be applicable) and (B) at all times on and after the Amendment No. 2 Effective Date, as determined pursuant to the “Pricing Grid”, (c) with respect to any New Incremental Loan, 7.00% in the case of Base Rate Loans and 8.00% in the case of Eurodollar Loans and (d) with respect to any other Incremental Term Loan, the rate per annum specified in the Incremental Amendment establishing such Incremental Term Commitment.
“Applicable Percentage” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated
3
or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.
“Applicable Premium” means, with respect to the principal amount of the Initial Term Loans then being paid, prepaid, repaid or accelerated on or prior to the first anniversary of the Amendment No. 2 Effective Date, the present value as of such date of payment, prepayment, repayment or acceleration, of all remaining interest that would have accrued on such principal amount of such Initial Term Loans from such date through the first anniversary of the Amendment No. 2 Effective Date (taking into account any scheduled amortization payments required to be made prior to such date) at a rate per annum equal to the Applicable Margin applicable to Eurodollar Loans (determined for a three-month Interest Period commencing on such date and assuming such Eurodollar Rate remains the same for the entire period from such date to the first anniversary of the New Incremental Loan Funding Date) constituting Initial Term Loans on such date (computed on the basis of actual days elapsed over a year of 360 days, using a discount rate equal to the Treasury Rate as of such date plus 50 basis points, and discounted in accordance with standard financial practice, and the term “Treasury Rate” shall mean, as of any date, the rate per annum equal to the weekly average yield as of such date on actually traded United States Treasury securities with a maturity nearest to the first anniversary of the Amendment No. 2 Effective Date (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date and which establishes yields on actively traded United States Treasury securities adjusted to a constant maturity of one year under the caption “Treasury Constant Maturities” (or, if such Statistical Release is no longer published, any publicly available source of similar market data)).
“Applicable New Incremental Loan Premium” means, with respect to the principal amount of the New Incremental Loans then being paid, prepaid, repaid or accelerated (as applicable):
(a)on or prior to the date that is eighteen months after the New Incremental Loan Funding Date, the greater of:
(1)an amount equal to the product of the principal amount of the applicable New Incremental Loans then being paid, repaid, prepaid or accelerated times 3.00%; and
(2)the present value as of such date of payment, prepayment, repayment or acceleration, of all remaining interest that would have accrued on such principal amount of such New Incremental Loans from such date through the date that is eighteen months after the New Incremental Loan Funding Date (taking into account any scheduled amortization payments required to be made prior to such date) at a rate per annum equal to the Applicable Margin applicable to Eurodollar Loans (determined for a three-month Interest Period commencing on such date and assuming such Eurodollar Rate remains the same for the entire period from such date to the date that is eighteen months after the New Incremental Loan Funding Date) constituting New Incremental Loans on such date (computed on the basis of actual days elapsed over a year of 360 days, using a discount rate equal to the Treasury Rate as of such date plus 50 basis points, and discounted in accordance with standard financial practice, and the term “Treasury Rate” shall mean, as of any date, the rate per annum equal to the weekly average yield as of such date on actually
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traded United States Treasury securities with a maturity nearest to the date that is eighteen months after the New Incremental Loan Funding Date (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date and which establishes yields on actively traded United States Treasury securities adjusted to a constant maturity of one year under the caption “Treasury Constant Maturities” (or, if such Statistical Release is no longer published, any publicly available source of similar market data));
(b)after the date that is eighteen months after the New Incremental Loan Funding Date but on or prior to the second anniversary of the New Incremental Loan Funding Date, a cash amount equal to the product of the principal amount of the applicable New Incremental Loans then being paid, repaid, prepaid or accelerated times 3.00%;
(c)after the date that is after the second anniversary of the New Incremental Loan Funding Date but on or prior to the third anniversary of the New Incremental Loan Funding Date, a cash amount equal to the product of the principal amount of the applicable New Incremental Loans then being paid, repaid, prepaid or accelerated times 2.00%;
(d)after the third anniversary of the New Incremental Loan Funding Date but on or prior to the fourth anniversary of the New Incremental Loan Funding Date, a cash amount equal to the product of the principal amount of the applicable New Incremental Loans then being paid, repaid, prepaid or accelerated times 1.00%; or
(e)after the fourth anniversary of the New Incremental Loan Funding Date, a cash amount equal to the product of the principal amount of the New Incremental Loans then being paid, repaid, prepaid or accelerated times 0.00%.
“Applicable Tax Rate” means (a) 40% or (b) if, at the time of the relevant distribution described in Section 7.6(f) herein, the highest combined federal, state and local marginal rate applicable to corporate taxpayers residing in New York City, New York, taking into account the deductibility of state and local income taxes for federal income tax purposes shall exceed 40%, such higher rate.
“Application” means an application, in such form as the relevant Issuing Lender may specify from time to time, requesting such Issuing Lender to issue a Letter of Credit (which application shall be subject to Section 3.8).
“Approved Deposit Account” shall have the meaning assigned thereto in Section 6.11 (which, for the avoidance of doubt, shall not include any Excluded Accounts).
“Approved Deposit Bank” means a Revolving Lender (or an affiliate thereof) as of the Amendment No. 23 Effective Date, or that becomes or became a Revolving Lender thereafter, in each case, that is an insured depository institution that is regulated by foreign, federal or state banking regulators, including, without limitation, the United States Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation or the Board. and approved by the Administrative Agent (with such approval not to be unreasonably withheld and it being
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understood and agreed that Vectra Bank Colorado (solely with respect to the deposit accounts and securities accounts of the Borrower held at Vectra Bank Colorado (or its Affiliate) and in existence as of the Amendment No. 3 Effective Date (such accounts, the “Existing Vectra Accounts”)), JPMorgan Chase Bank, N.A., Barclays Bank PLC, Royal Bank of Canada and each of their Affiliates are approved by the Administrative Agent).
“Asset Sale” means any Disposition of Property or series of related Dispositions of Property (excluding any such Disposition permitted by clauses (a) through (m) or (p) of Section 7.5) which yields Net Cash Proceeds to the Borrower or any of its Subsidiaries (valued at the outstanding principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000 (provided that such threshold is reduced to $5,000,000 from and after the Amendment No. 2 Effective Date through the Q3Q4 End Date).
“Assignee” shall have the meaning as defined in Section 10.6(b).
“Assignment and Acceptance” shall have the meaning as defined in Section 10.6(c).
“Assignor” shall have the meaning as defined in Section 10.6(b).
“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.11(c)); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.
“Available Cash” means for a particular period (i) the Borrower’s earnings before interest, taxes, depreciation and amortization (as determined in accordance with GAAP); plus (ii) non-cash items of deduction or loss (other than items related to barter transactions) subtracted in determining the Borrower’s earnings under clause (i); plus (iii) interest income received by the Borrower to the extent such income is not otherwise included in determining the Borrower’s earnings under clause (i); plus (iv) amounts received by the Borrower pursuant to the Loews Agreement or other similar agreements to the extent such amounts are not otherwise included in determining the Borrower’s earnings under clause (i); plus (v) amounts received by the Borrower pursuant to the Common Unit Adjustment Agreement to the extent such amounts are not otherwise included in determining the Borrower’s earnings under clause (i); plus (vi) amounts received by the Borrower pursuant to Section 3.5(c) of the Borrower LLC Operating Agreement to the extent such amounts are not otherwise included in determining the Borrower’s earnings under clause (i); plus (vii) net proceeds (after expenses attributable to the sale) from the sale of Borrower assets to the extent such proceeds are not otherwise included in determining the Borrower’s earnings under clause (i); plus (viii) for the second quarterly period of each fiscal year of the Borrower, the amount of any Distribution Increase (as hereinafter defined) attributable to the Distribution Year (as hereinafter defined); plus (ix) for the fourth quarterly period of each fiscal year of the Borrower, any amounts that the Borrower was not permitted to distribute to its members for each of the immediately preceding three quarterly fiscal periods of such fiscal year as a result of the application of Section 7.6(h) of this Agreement (to the extent such amounts are not restricted under Section 7.6(h) as of the last day of such fourth quarterly fiscal period); less (x) non-cash items of income or gain (other than items related to barter
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transactions) added in determining the Borrower’s earnings under clause (i); less (xi) amounts paid by the Borrower pursuant to the ESAs, the Management Agreement or other similar agreements to the extent such amounts are not otherwise deducted in determining the Borrower’s earnings under clause (i); less (xii) amounts paid by the Borrower pursuant to the Common Unit Adjustment Agreement to the extent such amounts are not otherwise deducted in determining the Borrower’s earnings under clause (i); less (xiii) taxes paid by the Borrower; less (xiv) Capital Expenditures made by the Borrower, minus any Agreed Increase in Available Cash in such period relating to a Specified Capital Expenditure, plus any Agreed Decrease in Available Cash in such period relating to a Specified Capital Expenditure; provided that the aggregate amount of all Agreed Decreases in Available Cash relating to any Specified Capital Expenditure for all fiscal quarters must equal the Agreed Increase in Available Cash relating to such Specified Capital Expenditure prior to the Initial Term Loan Maturity Date; less (xv) for the second quarterly period of each fiscal year of the Borrower, the amount of any Distribution Decrease (as hereinafter defined) attributable to the Distribution Year; less (xvi) interest paid by the Borrower on Specified Funded Indebtedness (as hereinafter defined); less (xvii) mandatory principal payments made by the Borrower on the Specified Funded Indebtedness to the extent such principal payments are made from funds other than funds that were restricted pursuant to Section 7.6(h) of this Agreement); less (xviii) amounts (other than interest and principal payments) paid by the Borrower with respect to Specified Funded Indebtedness to the extent such amounts are not otherwise deducted in determining the Borrower’s earnings under clause (i); provided, however, that (A) amounts borrowed under, and optional principal payments made on, the Revolving Credit Loans and the loans under the Revolving Credit Agreement, in each case, shall not be taken into account in determining Available Cash; (B) amounts received or paid by the Borrower pursuant to the terms of the Tax Receivable Agreement shall not be taken into account in determining Available Cash; (C) for the quarterly period that includes the Closing Date, Available Cash shall be determined beginning on the day following the Closing Date through the last day of such quarterly fiscal period; and (D) proceeds of or any payments made with or out of the proceeds of any Indebtedness incurred pursuant to Sections 7.2(k), (n), (o) or (p) shall not be taken in account in determining Available Cash. For purposes of this definition of Available Cash: (a) the term “Agreed Increase in Available Cash” means, with respect to any Specified Capital Expenditure, the amount of the increase in Available Cash in the fiscal quarter in which such Capital Expenditure is made that was agreed to among the Borrower and the members of the Borrower, such amount not to exceed the amount of such Specified Capital Expenditure; (b) the term “Specified Capital Expenditure” means any Capital Expenditure with respect to which (and to the extent that) the Borrower has agreed with the members of the Borrower to an Agreed Increase in Available Cash in the fiscal quarter in which such Capital Expenditure is made and to one or more Agreed Decreases in Available Cash in one or more fiscal quarters during the term of this Agreement; (c) the term “Agreed Decrease in Available Cash” means, with respect to any Specified Capital Expenditure, the amount of the decrease in Available Cash in any quarter that was agreed to among the Borrower and the members of the Borrower; provided that the aggregate amount of all such Agreed Decreases in Available Cash for any Specified Capital Expenditure shall not exceed the amount of such Specified Capital Expenditure; and (d) “Specified Funded Indebtedness” means the sum of (x) Indebtedness of the Borrower pursuant to any Loan Document, plus (y) additional Indebtedness, or any refinancing thereof, of the Borrower as permitted under the terms of this Agreement.
The Borrower shall determine Available Cash (i) for each quarterly fiscal period of the Borrower, and (ii) for each fiscal year of the Borrower (the “Distribution Year”) in connection with the preparation of the financial statements of the Borrower referred to in Section 6.1(a). To the extent Available Cash for the Distribution Year is greater than the total amount of Restricted
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Payments made pursuant to Section 7.6 with respect to the four quarterly fiscal periods in such Distribution Year (the “Distribution Increase”), the Distribution Increase will be added to Available Cash for the second quarterly period in the fiscal year following the Distribution Year. To the extent Available Cash for the Distribution Year is less than the total amount of Restricted Payments made pursuant to Section 7.6 with respect to the four quarterly fiscal periods in such Distribution Year (the “Distribution Decrease”), the Distribution Decrease will be subtracted from Available Cash for the second quarterly period in the fiscal year following the Distribution Year.
“Available Revolving Credit Commitment” means with respect to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Credit Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that in calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Credit Commitment pursuant to Section 2.9, the aggregate principal amount of Swing Line Loans then outstanding shall be deemed to be zero.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Eurodollar Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Eurodollar Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.17 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Base Rate Loans” means Loans for which the applicable rate of interest is based upon the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
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“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230
“Benefitted Lender” shall have the meaning as defined in Section 10.7.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Bona Fide Joint Venture” means any newly acquired, formed or structured Subsidiary that is a Joint Venture formed, acquired or structured for a bona fide business purpose (as determined by the Borrower acting in good faith) and, if owned in part by any Person that is an Affiliate of the Borrower (other than a Loan Party), any applicable transactions amongst the Loan Parties, on the one hand, and such Bona Fide Joint Venture, on the other hand, comply with Section 7.10 (without giving effect to the first parenthetical thereof).
“Bookrunners” means JPMorgan Chase Bank, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, RBC Capital Markets2 and Barclays Bank PLC, as joint bookrunners.
“Borrower” shall have the meaning as defined in the preamble hereto.
“Borrower LLC Operating Agreement” means the Third Amended and Restated Limited Liability Company Operating Agreement of the Borrower, as the same may be amended, supplemented or otherwise modified from time to time.
“Borrower Membership Units” means the common membership units of the Borrower.
“Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Loans at a specified discount to par pursuant to Section 2.11(c)(ii).
“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to Section 2.11(c)(iii).
“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.11(c)(iv).
“Borrowing Date” means any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Borrowing Notice” means with respect to any request for borrowing of Loans hereunder, a notice from the Borrower, substantially in the form of, and containing the information prescribed by, Exhibit A, delivered to the Administrative Agent.
“Business Day” means (a) for all purposes other than as covered by clause (b) below, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are
2 RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.
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authorized or required by law to close and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.
“Capital Expenditures” means all expenditures by the Borrower for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements) that the Borrower is required to capitalize for financial reporting purposes in accordance with GAAP.
“Capital Lease Obligations” means with respect 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, provided that obligations that are recharacterized as capital leases due to a change in GAAP after the Closing Date shall not be treated as capital leases for any purpose under this Agreement, but instead shall be accounted for as if they were operating leases for all purposes under this Agreement.
“Capital Stock” means 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.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Lenders or Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Lender shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable Issuing Lender. “Cash Collateral” shall have a meaning analogous to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency or political subdivision thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender, any lender under the Revolving Credit Agreement or by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A2 by Standard & Poor’s Ratings Services (“S&P”) or P2 by Xxxxx’x Investors Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender, any lender under the Revolving Credit Agreement or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
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States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender, any lender under the Revolving Credit Agreement or any commercial bank satisfying the requirements of clause (b) of this definition; and (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
“Cash Management Agreement” means mean any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit or debit card, stored value card, electronic funds transfer, purchasing cards, netting services, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), positive pay service, employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with cash management and deposit accounts.
“Cash Management Obligations” means, as to any person, any and all obligations of such person, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under any Cash Management Agreement.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (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 or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States 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.
“Change of Control” means the occurrence of any of the following events:
(a)(i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), excluding any Founding Member or Holdings, shall become the “beneficial owner” (as defined in Rules 13(d)3 and 13(d)5 under the Exchange Act), directly or indirectly, of more than 50% of the then issued and outstanding Borrower Membership Units and (ii) at such time (x) the voting requirements under Section 5.2 of Holding’s Amended and Restated Certificate of Incorporation (applying the ownership threshold for the Founding Members set forth in such Section in effect on the Closing Date) is not applicable and (y) no Founding Member is entitled to participate in giving Founding Member Approval (as such definition is defined in the Borrower LLC Operating Agreement on the Closing Date) pursuant to Section 4.3 of the Borrower LLC Operating Agreement (as such Section is in effect on the Closing Date); or
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(b)(i) any Person, other than a Founding Member, acquires the right to (A) elect, or (B) nominate for election or (C) designate for nomination pursuant to the Designation Agreement, a majority of the members of the board of directors of Holdings and (ii) at such time (x) the voting requirements under Section 5.2 of Holding’s Amended and Restated Certificate of Incorporation (applying the ownership threshold for the Founding Members set forth in such Section in effect on the Closing Date) is not applicable and (y) no Founding Member is entitled to participate in giving Founding Member Approval (as such definition is defined in the Borrower LLC Operating Agreement on the Closing Date) pursuant to Section 4.3 of the Borrower LLC Operating Agreement (as such Section is in effect on the Closing Date); or
(c)(i) Holdings shall cease to be the manager of the Borrower and (ii) at such time (x) the voting requirements under Section 5.2 of Holding’s Amended and Restated Certificate of Incorporation (applying the ownership threshold for the Founding Members set forth in such Section in effect on the Closing Date) is not applicable and (y) no Founding Member is entitled to participate in giving Founding Member Approval (as such definition is defined in the Borrower LLC Operating Agreement on the Closing Date) pursuant to Section 4.3 of the Borrower LLC Operating Agreement (as such Section is in effect on the Closing Date).
For purposes of this definition of Change of Control only, the term “Founding Member” shall mean (a) each of American Multi-Cinema, Inc., a Missouri corporation, Cinemark Media, Inc., a Delaware corporation, and Regal CineMedia Holdings, LLC, a Delaware limited liability company, and (b) each Permitted Transferee (as such definition is defined in the Borrower LLC Operating Agreement on the Closing Date) that constitutes a Founding Member Affiliate.
“Class” means when used in reference to any Loan or any borrowing, refers to whether such Loan, or the Loans comprising such borrowing, are Revolving Credit Loans, Extended Revolving Credit Loans of the same Extension Series and including any related swingline loans thereunder, Replacement Revolving Credit Loans (of the same series and any related swingline loans thereunder), Term Loans, Extended Term Loans of the same Extension Series or Swing Line Loans and, when used in reference to any Revolving Credit Commitment, refers to whether such Revolving Credit Commitment is a Revolving Credit Commitment, a Revolving Credit Commitment Increase established as a separate tranche under Section 2.25, or an Extended Revolving Credit Commitment of the same Extension Series and including any related swingline commitments thereunder, a Replacement Revolving Credit Commitment (of the same series and any related swingline commitment thereunder) or a Swing Line Commitment.
“Closing Date” means June 20, 2018.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Co-Manager” means ZB, N.A. dba Vectra Bank Colorado.
“Collateral” means all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
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“Commitment” means (a) with respect to each Lender (to the extent applicable), such Lender’s Revolving Credit Commitment, Extended Revolving Credit Commitment of the same Extension Series, Replacement Revolving Credit Commitment, Incremental Term Commitment or any combination thereof (as the context requires) and (b) with respect to the Swing Line Lender or any swingline lender under any Extended Revolving Credit Commitment or Replacement Revolving Credit Commitment, its swingline commitment.
“Commitment Fee Rate” means 0.50% per annum.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Common Unit Adjustment Agreement” means the Common Unit Adjustment Agreement by and among Holdings, the Borrower, the Founding Members and the ESA Parties dated as of February 13, 2007, as the same may be amended, supplemented or modified from time.
“Commonly Controlled Entity” means an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
“Compliance Certificate” means a certificate duly executed by a Responsible Officer, substantially in the form of Exhibit B.
“Consolidated EBITDA” means, of the Borrower for any period, Consolidated Net Income of the Borrower and its Subsidiaries for such period plus, without duplication and to the extent deducted in determining such Consolidated Net Income for such period, the sum of (a) expenses for taxes based on income or capital (including franchise and similar taxes), (b) interest expense of the Borrower and its Subsidiaries, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges incurred in connection with or associated with Indebtedness (including without limitation, as it relates to the Borrower and its Subsidiaries, the Facilities and the revolving credit facility under the Revolving Credit Agreement), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring charges, expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business), including without limitation, as it relates to the Borrower and its Subsidiaries, all fees, commissions, expenses, costs, charges and reorganizations costs (including reasonable legal, accounting, financing, consulting and advisory costs, fees and expenses) incurred in connection with the Facilities, the revolving credit facility under the Revolving Credit Agreement or the initial public offering of the common stock of Holdings (provided, that the addback pursuant to this clause (e), when combined with Pro Forma Cost Savings added back (or adjusted) in connection with such calculation, shall not exceed 15.0% of Consolidated EBITDA calculated after giving effect to this clause (e) and such adjustment for Pro Forma Cost Savings), (f) severance plan costs or expense, and (g) any other non-cash charges, expenses or losses of the Borrower and its Subsidiaries, including without limitation, (x) non-cash compensation expenses arising from the issuance by Holdings, the Borrower or the applicable Subsidiary of equity, options to purchase equity, stock or equity appreciation rights or similar rights to the employees of Holdings, the Borrower and Subsidiaries of the Borrower and (y) non-cash charges related to changes in the exposure of the Borrower and its Subsidiaries under Hedge Agreements, and minus, to the extent included in determining such
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Consolidated Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining such Consolidated Net Income), (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), (c) any other non-cash income and (d) any cash payments made during such period in respect of items described in clause (g) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated Net Senior Secured Leverage Ratio, (i) if at any time during such Reference Period or after the end of such Reference Period and on or prior to the date on which such determination is being made, the Borrower or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Reference 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 Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period or after the end of such Reference Period and on or prior to the date on which such determination is being made, the Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto (taking into account any Pro Forma Cost Savings (provided that, when combined with amounts added back pursuant to clause (e) of this definition, the aggregate amount of adjustments for Pro Forma Cost Savings and amounts added back pursuant to such clause (e) shall not exceed 15.0% of Consolidated EBITDA (after giving effect to such adjustments for Pro Forma Cost Savings and pursuant to clause (e))) as if such Material Acquisition occurred on the first day of such Reference Period. As used in this definition, “Material Acquisition” means any Acquisition that involves the payment of consideration (including stock consideration) by the Borrower and/or its Affiliates in excess of an amount equal to 10% of Consolidated EBITDA of the Borrower and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending prior to the closing date of such Acquisition with respect to which financial statements have been prepared by the Borrower. “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of an amount equal to 10% of Consolidated EBITDA of the Borrower and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending prior to the date of such Disposition with respect to which financial statements have been prepared by the Borrower.
“Consolidated Net Income” means, of any Person for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided, that in calculating Consolidated Net Income of the Borrower and its consolidated Subsidiaries for any period, there shall be excluded (a) except as set forth in the second paragraph of the definition of “Consolidated EBITDA,” the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document or any “Loan
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Document” as defined in the Revolving Credit Agreement) or Requirement of Law applicable to such Subsidiary.
“Consolidated Net Senior Secured Leverage Ratio” means as of any date of determination, the ratio of (a) Consolidated Senior Secured Debt on such day less the aggregate amount of cash and Cash Equivalents owned by the Borrower and its Subsidiaries on such day in an amount not to exceed $100,000,000 (in each case, free and clear of all Liens (other than Liens permitted by Section 7.3(a), (h), (l) and (s) and/or Liens securing the obligations under any of the Revolving Credit Agreement and/or the Senior Secured 2028 Notes (or, in each case, any Permitted Refinancing thereof))) to (b) Adjusted Consolidated EBITDA of the Borrower and its Subsidiaries for the Reference Period most recently ended on or prior to such date of determination for which (excluding for purposes of Section 7.1) financial statements have been prepared by the Borrower.
“Consolidated Senior Secured Debt” means at any date, Consolidated Total Debt (other than Permitted Unsecured Indebtedness) at such date, determined on a consolidated basis in accordance with GAAP, that is secured by a Lien on any assets of the Borrower or its Subsidiaries.
“Consolidated Total Debt” means at any date, the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries of the type described in clauses (a) through (e) of the definition of “Indebtedness” in this Section 1.1 at such date, determined on a consolidated basis in accordance with GAAP.
“Consolidated Total Leverage Ratio” means as of any date of determination, the ratio of (a) Consolidated Total Debt on such date less the aggregate amount of cash and Cash Equivalents owned by the Borrower and its Subsidiaries on such date in an amount not to exceed $100,000,000 (in each case, free and clear of all Liens (other than Liens permitted by Section 7.3(a), (h), (l) and (s) and/or Liens securing the obligations under any of the Revolving Credit Agreement and/or the Senior Secured 2028 Notes (or, in each case, any Permitted Refinancing thereof))) to (b) Adjusted Consolidated EBITDA of the Borrower and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination with respect to which financial statements have been prepared by the Borrower.
“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.
“Control Agreement” means an account control agreement that establishes the Administrative Agent’s “control” over a deposit account or securities account (as applicable) within the meaning of Section 8-106 or 9-104 of the UCC, as applicable, each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower.
“Control Investment Affiliate” means as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
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“Covenant Holiday Period” shall have the meaning assigned thereto in Section 7.1.
“Covered Entity” means any of the following:
(1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Debt Fund Affiliate” means any Affiliate (other than a natural person) of the Borrower or any of its Subsidiaries that is a bona fide debt fund or investment vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Deposit Account Grace Period” shall have the meaning assigned to such term in Section 6.11(b)(I).
“Default” means any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.24(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including, in the case of a Revolving Credit Lender, in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Lender or any Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder
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(provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as the ownership of such Capital Stock does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Lender, each Swing Line Lender and each Lender.
“Designation Agreement” means the Director Designation Agreement dated as of February 13, 2007 among Holdings, American Multi-Cinema, Inc., a Missouri corporation, Cinemark Media, Inc., a Delaware corporation, and Regal CineMedia Holdings, LLC, a Delaware limited liability company, as the same may be amended, supplemented or otherwise modified from time to time.
“Discharged in Full” occurs when (i) the Commitments have terminated or expired, no Letter of Credit is outstanding (other than Letters of Credit that have been Cash Collateralized) and all Obligations of all Loan Parties (other than obligations in respect of Hedge Agreements, Cash Management Obligations and contingent indemnification obligations for which no claim has been made) have been paid in full in cash, and (ii) to the extent obligations in respect of Hedge Agreements are then outstanding, unless otherwise agreed in writing by the applicable counterparties, either (x) no event of default or termination event shall have occurred and be continuing under any such Hedge Agreements, and no event described in Section 8(f) (in respect of Borrower only) shall have occurred and be continuing or (y) the parties have collateralized such obligations in a manner reasonably satisfactory to the relevant counterparty to such Hedge Agreements.
“Discount Prepayment Accepting Lender”: as defined in Section 2.11(c)(ii).
“Discount Range”: as defined in Section 2.11(c)(iii).
“Discount Range Prepayment Amount”: as defined in Section 2.11(c)(iii).
“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.11(c) substantially in a form mutually agreed to by the Borrower, the Auction Agent and the Administrative Agent.
“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in a form mutually agreed to by the Borrower, the Auction Agent and the Administrative Agent, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
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“Discount Range Prepayment Response Date”: as defined in Section 2.11(c)(iii).
“Discount Range Proration”: as defined in Section 2.11(c)(iii).
“Discounted Loan Prepayment”: as defined in Section 2.11(c)(i).
“Discounted Prepayment Determination Date”: as defined in Section 2.11(c)(iv).
“Discounted Prepayment Effective Date” means in the case of any Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the respective Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.11(c)(ii), Section 2.11(c)(iii) or Section 2.11(c)(iv), respectively, unless a different period is agreed to between the Borrower and the Auction Agent acting in their reasonable discretion.
“Disposition” means with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security or Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event, (i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (ii) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) debt securities or (b) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (iii) contains any mandatory repurchase obligation which may come into effect prior to the date of the termination of this Agreement or (iv) provides for the scheduled payments of dividends in cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that (x) any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of a change in control, or a Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the date of the termination of this Agreement and (y) for purposes of clause (i) through (iv) above, it is understood and agreed that if any such maturity, redemption, conversion, exchange, repurchase obligation or scheduled payment is in part, only such part coming into effect prior to, in the case of clauses (i), (ii) and (iv) above, the date that is 91 days following the Latest Maturity Date and, in the case of clause (iii) above, prior to the date of the termination of this Agreement, shall constitute Disqualified Capital Stock.
Notwithstanding the preceding sentence, (A) if such Capital Stock is issued to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management,
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managers or consultants, in each case in the ordinary course of business of the Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates) of the Borrower (or any Restricted Subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Institution” means, on any date, (a) any Person designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to the date hereof, (b) any other Person that is a competitor of the Borrower or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” from time to time during the term of this Agreement by written notice to the Administrative Agent not less than 3 Business Days prior to such date and (c) Affiliates of such Persons set forth in clauses (a) and (b) above to the extent such Affiliates are either (i) identified in writing by Borrower from time to time by means of a written notice to the Administrative Agent or (ii) clearly identifiable solely on the basis of the similarity of such Affiliate’s name; provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time unless subsequently identified in writing in accordance with this definition.
“Dollars” and “$”means dollars in lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of the United States of America or any jurisdiction within the United States of America.
“DQ List” shall have the meaning as defined in Section 10.6(i)(iv).
“ECF Percentage” means with respect to any fiscal year of the Borrower, 50%; provided, that, the ECF Percentage shall be 0% if the Consolidated Net Senior Secured Leverage Ratio as of the last day of such fiscal year is less than 3.00 to 1.0.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Employment Agreements” means the collective reference to the employment agreements entered into from time to time among Holdings, the Borrower and each “Service Employee”
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under (and as defined in) the Management Agreement, in each case as the same may be amended, supplemented or modified from time to time.
“Environmental Laws” means any and all laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or other legally enforceable requirements (including, without limitation, common law) of any international authority, foreign government, the United States, or any state, local, municipal or other governmental authority regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health, or employee health and safety, as has been, is now, or may at any time hereafter be, in effect.
“Environmental Permits” means any and all permits, licenses, approvals, registrations, notifications, exemptions and other authorizations required or issued under any Environmental Law.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Event”: (i) a Reportable Event with respect to any Single Employer Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Single Employer Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Single Employer Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Single Employer Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower or any Commonly Controlled Entity from any Single Employer Plan with two or more contributing sponsors or the termination of any such Single Employer Plan resulting in liability to the Borrower or any Commonly Controlled Entity pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Single Employer Plan the termination of or the appointment of a trustee to administer any Single Employer Plan, or the receipt of a written notice in which the PBGC states that either such an event is forthcoming; (vi) the imposition of liability on the Borrower or any Commonly Controlled Entity pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of the Borrower or any Commonly Controlled Entity in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is a reasonable expectation of potential liability therefor, or the receipt by the Borrower or any Commonly Controlled Entity of notice from any Multiemployer Plan that it is Insolvent, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which would reasonably be expected to give rise to the imposition on the Borrower or any Commonly Controlled Entity of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Plan other than a Multiemployer Plan or the assets thereof, or against the Borrower, or any Commonly Controlled Entity in connection with any Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Single Employer Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or of the failure of any trust forming part of any Single Employer Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code.
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“ESAs” means the collective reference to (a) the Exhibitor Services Agreement between the Borrower and American Multi-Cinema, Inc., a Missouri corporation, dated as of February 13, 2007, (b) the Exhibitor Services Agreement between the Borrower and Cinemark USA, Inc., a Texas corporation, dated as of February 13, 2007, and (c) the Exhibitor Services Agreement between the Borrower and Regal Cinemas, Inc., a Tennessee corporation, dated as of February 13, 2007, in each case as amended, supplemented or modified from time to time.
“ESA Parties” means the collective reference to American Multi-Cinema, Inc., a Missouri corporation, Cinemark USA, Inc., a Texas corporation, and Regal Cinemas, Inc., a Tennessee corporation.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar Loans” means Loans for which the applicable rate of interest is based upon the Eurodollar Rate.
“Eurodollar Rate” ” means, with respect to any borrowing of Eurodollar Loans for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Eurodollar Tranche” means the collective reference to Eurodollar Loans under a particular Facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“Event of Default” means any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Excess Cash Flow” means for a fiscal year of the Borrower, (i) Available Cash for such fiscal year, less (ii) to the extent not deducted in calculating Available Cash for such fiscal year, Restricted Payments and other cash payments as permitted under Section 7.6 made or payable with respect to such fiscal year, less (iii) an amount equal to the greater of (x) $10,000,000 and (y) 5% of Adjusted EBITDA (calculated as of the most recent date for which financial statements have been delivered pursuant to Sections 6.1(a) or (b), at the time made) for such fiscal year, less (iv) all optional prepayments made after the end of a fiscal year and before the Excess Cash Flow Application Date; provided that notwithstanding the foregoing, Excess Cash Flow shall not include Available Cash for any fiscal quarters of the Borrower commencing with (inclusively) the fiscal quarter ended June 30, 2020 and ending with (inclusively) the fiscal quarter ending on or about September 29March 30, 20222023.
“Excess Cash Flow Application Date” shall have the meaning as defined in Section 2.12(c).
“Excluded Accounts” means all deposit accounts and securities accounts (a) used exclusively for payroll, withholding tax or other employee wage and benefit accounts; (b) that are exclusively escrow, fiduciary or other trust or similar accounts; (c) that are exclusively tax accounts, including, without limitation, sales tax accounts and escrow accounts; (d) that are any other accounts that do not have a daily balance or fair market value in excess of $100,000, collectively; and (e) that are owned by a Subsidiary that is not a Loan Party. On the date of delivery of the Compliance Certificate pursuant to Section 6.2(a), the Borrower shall provide notice to the Administrative Agent of all Excluded Accounts.
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“Excess Cash Flow Application Date” shall have the meaning as defined in Section 2.12(c).
“Excluded Collateral” shall have the meaning as defined in the Guarantee and Collateral Agreement.
“Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly Owned Subsidiary or (b) any Subsidiary that does not account for either (i) 2.5% or more of the consolidated revenue of the Borrower and its Subsidiaries individually or 5.0% when aggregated with all other Excluded Subsidiaries under this clause (b), in each case as determined in accordance with GAAP or (ii) 2.5% or more of the Holdings Total Capitalization individually or 5.0% when aggregated with all other Excluded Subsidiaries under this clause (b), in each case measured for the period of four consecutive fiscal quarters ended on the last day of the then most recently ended fiscal quarter with respect to which financial statements have been prepared by the Borrower. Notwithstanding anything to the contrary in this Agreement, a Subsidiary that ceases to be a Wholly Owned Subsidiary as a result of any transaction (or series of related transactions) that is not a bona fide, arm’s length business transaction with third parties or, if with Affiliates, upon fair and reasonable terms no less favorable to the Loan Parties than they would obtain in a comparable arm’s length transaction (including, without limitation, any transaction for the sole purpose of releasing such Subsidiary as a Subsidiary Guarantor) shall not be deemed to be an Excluded Subsidiary and shall not release or otherwise impact or affect any Lien, Guaranty Obligation or Collateral under this Agreement or any other Loan Document in any manner whatsoever.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of security of security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Existing Class” means each Class of Existing Revolving Credit Loans, Existing Revolving Credit Commitments and Existing Term Loans.
“Existing Credit Agreement”: the Credit Agreement, dated as of February 13, 2007 (as amended and restated pursuant to that certain Amendment No. 4, dated as of November 26, 2012, as amended pursuant to that certain Amendment No. 5, dated as of May 2, 2013, as amended pursuant to that certain Incremental Amendment No. 1, dated as of June 18, 2014, as amended pursuant to that certain Amendment No. 6, dated as of July 2, 2014, and as amended pursuant to that certain Incremental Amendment No. 2, dated as of May 26, 2016), by and among the Borrower, the several banks and other financial institutions or entities from time to time party thereto and Barclays Bank PLC, as administrative agent.
“Existing Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of April 27, 2012, among the Borrower, JPMorgan Chase Bank, N.A., as successor Collateral Agent, Administrative Agent and Authorized Representative (each as defined therein) for the First-Lien
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Secured Parties and Credit Agreement Secured Parties (each as defined therein), and Xxxxx Fargo Bank, National Association, as the Notes Authorized Representative (as defined therein), with respect to the Prior Senior Secured Notes (as amended, supplemented or otherwise modified from time to time, including by the Representative Supplement).
“Existing Revolving Credit Commitments” shall have the meaning as defined in Section 2.27(a).
“Existing Revolving Credit Loans” shall have the meaning as defined in Section 2.27(a).
“Existing Term Loans” shall have the meaning as defined in Section 2.27(a).
“Existing Vectra Accounts” shall have the meaning as defined in the definition of “Approved Deposit Bank.”
“Extended Loans/Commitments” means the Extended Revolving Credit Loans, Extended Revolving Credit Commitments and/or Extended Term Loans.
“Extended Revolving Credit Commitments” shall have the meaning as defined in Section 2.27(a).
“Extended Revolving Credit Loans” shall have the meaning as defined in Section 2.27(a).
“Extended Term Loans” shall have the meaning as defined in Section 2.27(a).
“Extending Lender” shall have the meaning as defined in Section 2.27 (b).
“Extending Term Loan Lender”: any Extended Lender holding an Extended Term Loan.
“Extension Amendment” shall have the meaning as defined in Section 2.27(c).
“Extension Date” shall have the meaning as defined in Section 2.27(e).
“Extension Election” shall have the meaning as defined in Section 2.27(b).
“Extension Request” shall have the meaning as defined in Section 2.27(a).
“Extension Series” means (a) in the case of Extended Revolving Credit Commitments, Extended Revolving Credit Commitments that are established to have the same maturity date pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Revolving Credit Commitments provided for therein are intended to be a part of any previously established Extension Series) and (b) in the case of Extended Term Loans, Extended Term Loans that are established to have the same maturity date pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be a part of any previously established Extension Series).
“Facility” means each of (a) the Initial Term Loan Commitments and the Initial Term Loans made thereunder (the “Term Loan Facility”), (b) any Incremental Facility and (c) each Class of Revolving Credit Commitments and the extensions of credit made thereunder (each a “Revolving Credit Facility”).
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“FATCA” means 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 and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and any legislation, regulation or guidance giving effect to such intergovernmental agreements.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“Final Circuit Share Payments” means the collective reference to the “Final Circuit Share Payments” as defined in, and to be paid by the Borrower to the ESA Parties pursuant to, that certain side letter dated as of February 13, 2007, by and among the Borrower and the ESA Parties, substantially in the form filed with the SEC on January 24, 2007.
“Flood Insurance Laws” means (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 statute thereto, (iii) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001, et seq.), as the same may be amended or recodified from time to time, and (iv) the Flood Insurance Reform Act of 2004 and any regulations promulgated thereunder.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
“Founding Members” means the collective reference to American Multi-Cinema, Inc., a Missouri corporation, Cinemark Media, Inc., a Delaware corporation, and Regal CineMedia Holdings, LLC, a Delaware limited liability company.
“Founding Member Affiliate” means each Founding Member Parent and any Person that, directly or indirectly, is controlled by a Founding Member Parent. For purposes of this definition only, “control” of a Person means the power, directly or indirectly, either to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Founding Member Parent” means each of (a) Dalian Xxxxx Group Co., Ltd. or its successor or any Person that wholly-owns Dalian Xxxxx Group Co., Ltd., directly or indirectly, in the future, in the case of American Multi-Cinema, Inc., (b) Cinemark Holdings, Inc. or its successor or any Person that wholly-owns Cinemark Holdings, Inc., directly or indirectly, in the future, in the case of Cinemark Media, Inc., and (c) Cineworld Group plc or its successor or any Person that wholly-owns Cineworld Group plc, directly or indirectly, in the future, in the case of Regal CineMedia Holdings, LLC.
“FQ1”, “FQ2”, “FQ3”, and “FQ4” means when used with a numerical year designation, means the first, second, third or fourth fiscal quarters, respectively, of such fiscal year of the Borrower (e.g., FQ4 2018 means the fourth fiscal quarter of the Borrower’s 2018 fiscal year, which ends on December 31, 2018).
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“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by such Issuing Lender other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting Lender’s Applicable Percentage of outstanding Swing Line Loans made by such Swing Line Lender other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Funding Office” means the office specified from time to time by the Administrative Agent as its funding office by notice to the Borrower and the Lenders.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement executed and delivered by the Borrower and each Subsidiary Guarantor on the Closing Date, as the same may be amended, supplemented or otherwise modified from time to time.
“Guarantee Obligation” means as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit), in each case, that guarantees or in effect guarantees any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business, customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any Acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness, or any Excluded Swap Obligations). The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case
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the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Hedge Agreements” means all interest rate or currency forwards, options, swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements entered into by the Borrower or its Subsidiaries providing for protection against fluctuations in interest rates, currency exchange rates, commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any Hedging Agreements.
“Holdings” means National CineMedia, Inc., a Delaware corporation.
“Holdings Common Stock” means the common stock, par value $0.01 per share, of Holdings.
“Holdings Common Stock Outstanding” means, as of any date of determination, (a) all shares of Holdings Common Stock actually outstanding on such date, (b) all shares of Holdings Common Stock issuable upon conversion or exchange of the common membership units of the Borrower outstanding on such date, and (c) all shares of Holdings Common Stock issuable upon exercise or conversion of all other options, warrants, evidences of indebtedness, shares (other than the Holdings Common Stock) or other securities outstanding on such date that are convertible or exchangeable for Holdings Common Stock.
“Holdings Total Capitalization” means, as of any date of determination, the sum of:
(a)an amount equal to (i) the number of shares of Holdings Common Stock Outstanding on such date, multiplied by (ii) the average of the closing prices of the Holdings Common Stock on the Nasdaq Global Select Market over the 30 day period ending three (3) trading days prior to such date; plus
(b)an amount equal to (i) the aggregate principal amount of all Indebtedness of Holdings and its Subsidiaries of the type described in clauses (a) through (e) of the definition of “Indebtedness” in this Section 1.1 at such date, determined on a consolidated basis in accordance with GAAP, less (ii) the aggregate amount of cash and Cash Equivalents owned by the Borrower and its Subsidiaries on such date (in each case, free and clear of all Liens (other than Liens permitted by Section 7.3(a), (f), (h) and, (l) and (s)); plus
(c)an amount equal to aggregate book value of all outstanding shares of non-convertible preferred stock of Holdings (if any).
“IBA” has the meaning as defined in Section 1.03.
“Impacted Interest Period” has the meaning assigned to it in the definition of “LIBO Rate.”
“Incremental Additional Lender” shall have the meaning as defined in Section 2.25; provided that, for all purposes hereof, Incremental Additional Lender shall not include any financial institution retained as an arranger or fronting agent (or a similar Person acting in such a capacity (or a similar capacity)) on behalf, or at the request of, any Lender (or any Affiliate of (or fund,
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partnership, account, investment vehicle or other entity managed or advised by) such Person or Lender or an Affiliate thereof).
“Incremental Amendment” shall have the meaning as defined in Section 2.25.
“Incremental Facility” means an Incremental Term Facility or Incremental Revolving Facility.
“Incremental Facility Closing Date” shall have the meaning as defined in Section 2.25.
“Incremental Revolving Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Amendment and Section 2.25, to make Revolving Loans and to acquire participations in Letters of Credit and Swing Line Loans hereunder.
“Incremental Revolving Facility” means an incremental portion of the Revolving Credit Commitments established hereunder pursuant to an Incremental Amendment providing for Incremental Revolving Commitments.
“Incremental Term Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Amendment and Section 2.25, to make Incremental Term Loans, expressed as an amount representing the maximum principal amount of such Incremental Term Loans to be made by such Lender.
“Incremental Term Facility” means an incremental term loan facility established hereunder pursuant to an Incremental Amendment providing for Incremental Term Commitments.
“Incremental Term Lender” means a Lender with an Incremental Term Commitment or an outstanding Incremental Term Loan.
“Incremental Term Loans” shall have the meaning as defined in Section 2.25.
“Incremental Term Loan Maturity Date” means, with respect to Incremental Term Loans, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Amendment.
“Indebtedness” means, of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than trade payables, deferred compensation arrangements for employees, directors and officers and other accrued obligations, in each case in the ordinary course of business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property) other than customary reservations or retentions of title under agreements with suppliers in the ordinary course of business; provided that, in such event, the amount of such Indebtedness shall be deemed to be the lesser of the fair market value of such Property and the aggregate principal amount of such Indebtedness, (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit, surety bond or similar facilities, (g) for purposes of Section 7.2 only, all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person on or prior to June 20, 2025 (other than for consideration consisting of Borrower Membership Units or
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Holdings Common Stock or cash consideration of, or funded (directly or indirectly) by, Holdings), (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (j) for the purposes of Section 8(e) only, all obligations of such Person in respect of Hedge Agreements; provided that for purposes of this definition, the principal amount of any Hedge Agreement as of such date shall be the maximum aggregate amount that such Person would be required to pay if such Hedge Agreement were terminated as of such date (after giving effect to any netting arrangements) and (k) Cash Management Obligations. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. Notwithstanding the foregoing, the term “Indebtedness” shall not include (i) purchase price adjustments, earnouts, holdbacks or deferred payments of a similar nature (including deferred compensation representing consideration or other contingent obligations incurred in connection with an acquisition), except in each case to the extent that such amount payable is, or becomes, due and payable; (ii) obligations in respect of non-competes and similar agreements and (iii) licenses and operating leases. The amount of Indebtedness of any Person for purposes of clause (i) above shall (unless such Indebtedness has been assumed by such Person or such Person has otherwise become liable for the payment thereof) be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” shall have the meaning as defined in Section 10.5.
“Indemnitee” shall have the meaning as defined in Section 10.5.
“Identified Participating Lenders” shall have the meaning as defined in Section 2.11(c)(iii).
“Identified Qualifying Lenders” shall have the meaning as defined in Section 2.11(c)(iv).
“Initial Term Loan” means a Loan made pursuant Section 2.1 (but excluding, for the avoidance of doubt, any New Incremental Loan).
“Initial Term Loan Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make an Initial Term Loan on the Closing Date, expressed as an amount representing the maximum principal amount of the Initial Term Loan to be made by such Lender, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender in any Assignment and Assumption related to such Initial Term Loan. The initial amount of the Lender’s Initial Term Loan Commitment is set forth on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Initial Term Loan Commitment, as applicable. The initial aggregate amount of the Initial Term Loan Commitments as of the Closing Date is $270,000,000.
“Initial Term Loan Lender” means each Lender that has an Initial Term Loan Commitment or is the holder of an Initial Term Loan.
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“Initial Term Loan Maturity Date” means subject to Section 2.27, the seventh anniversary of the Closing Date.
“Insolvency” means with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvent” means pertaining to a condition of Insolvency.
“Intellectual Property” means 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, without limitation, copyrights, copyright licenses, patents, patent licenses, trademarks, service marks, trademark and service xxxx licenses, domain names, technology, know-how and processes, and all rights to xxx at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intercreditor Agreement” means (i) that certainthe Existing Intercreditor Agreement, dated as of April 27, 2012, among the Borrower, Barclays Bank PLC, as Collateral Agent, Administrative Agent and Authorized Representative (each as defined therein) for the First-Lien Secured Parties and Credit Agreement Secured Parties (each as defined therein), and Xxxxx Fargo Bank, National Association, as the Notes Authorized Representative, with respect to the Prior Senior Secured Notes (as supplemented by the Representative Supplement No. 1, dated as of the Closing Date, among the Borrower, Barclays Bank PLC, Xxxxx Fargo Bank, National Association and the Administrative Agent) and (ii) any other Intercreditor Agreement on customary terms which are reasonably satisfactory to the Administrative Agent entered into in connection with any additional Indebtedness contemplated by Section 7.2(p) and (q), including any Permitted Refinancing of the Senior Secured 2028 Notes or any other additional Indebtedness permitted by this Agreement.
“Interest Payment Date” means (a) as to any Base Rate Loan, the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Credit Loan that is a Base Rate Loan and any Swing Line Loan), the date of any repayment or prepayment made in respect thereof.
“Interest Period” means as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 12:00 Noon, New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(1)if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day
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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 Business Day;
(2)any Interest Period that would otherwise extend beyond the Revolving Credit Termination Date or beyond the date final payment is due on the Term Loans shall end on the Revolving Credit Termination Date or such due date, as applicable; and
(3)any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period.
“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
“Investments” shall have the meaning as defined in Section 7.8.
“Issuing Lender” means JPMorgan Chase Bank, N.A. and any other Revolving Credit Lender from time to time designated by the Borrower as an Issuing Lender with the consent of such Revolving Credit Lender and the Administrative Agent.
“Joint Venture” means, with respect to any Person, any other Person in which such Person owns Capital Stock (other than any Wholly-Owned Subsidiary), and including, for the avoidance of doubt, any other Person in which such Person owns a minority position in the Capital Stock thereof. Unless otherwise specified, “Joint Venture” shall refer to any Person in which the Borrower or any Subsidiary thereof owns Capital Stock (other than any Wholly Owned Subsidiary).
“Junior Financing” shall have the meaning set forth in Section 7.7.
“Latest Maturity Date” means the latest of the then Latest Revolving Maturity Date and the then Latest Term Loan Maturity Date.
“Latest Revolving Maturity Date” means with respect to any Indebtedness, the latest Maturity Date applicable to any Revolving Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is issued or incurred.
“Latest Term Loan Maturity Date” means with respect to any Indebtedness, the latest Maturity Date applicable to any Term Loan Facility that is outstanding hereunder as determined on the date such Indebtedness is issued or incurred.
“LCT Election” has the meaning set forth in Section 1.3.
“LCT Test Date” has the meaning set forth in Section 1.3.
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“L/C Commitment” means $10,000,000.
“L/C Disbursement” means a payment made by an Issuing Lender pursuant to a Letter of Credit.
“L/C Fee Payment Date” means the last Business Day of each March, June, September and December and the last day of the Revolving Credit Commitment Period.
“L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.
“L/C Participants” means with respect to any Letter of Credit, the collective reference to all the Revolving Credit Lenders other than the Issuing Lender that issued such letter of Credit.
“Lead Arrangers” means JPMorgan Chase Bank, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and RBC Capital Markets, as joint lead arrangers.
“Lender Addendum” means with respect to any initial Lender, a Lender Addendum, substantially in the form of Exhibit C, to be executed and delivered by such Lender on the Closing Date as provided in Section 10.17.
“Lenders” shall have the meaning as defined in the preamble hereto.
“Letters of Credit” shall have the meaning as defined in Section 3.1.
“LIBO Rate” means, with respect to any borrowing of Eurodollar Loans for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated Rate.
“LIBO Screen Rate” means, for any day and time, with respect to any borrowing of Eurodollar Loans for any Interest Period, 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 as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than 1.00%, such rate shall be deemed to 1.00% for the purposes of this Agreement.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” means any acquisition or similar Investment whose consummation is not conditioned on the availability of, or on obtaining, financing.
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“Limited Condition Transaction” means (i) any Limited Condition Acquisition and/or (ii) any redemption or repayment of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing.
“Loan” means any loan made by any Lender pursuant to this Agreement.
“Loan Documents” means this Agreement, any amendment hereto, the Intercreditor Agreement, the Security Documents, the Applications and the Notes.
“Loan Parties” means the Borrower and each Subsidiary Guarantor.
“Loews Agreement” means the First Amended and Restated Loews Screen Integration Agreement, dated as of February 13, 2007, by and among American Multi-Cinema, Inc., a Missouri corporation, and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time.
“Majority Facility Lenders” means with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Credit Facility, prior to any termination of the Revolving Credit Commitments, the holders of more than 50% of the Total Revolving Credit Commitments); provided, that the Revolving Credit Commitments of, and the portion of the Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Majority Facility Lenders.
“Majority Revolving Credit Facility Lenders” means the Majority Facility Lenders in respect of the Revolving Credit Facility.
“Majority Term Loan Facility Lenders” means the Majority Facility Lenders in respect of the Term Loan Facility.
“Management Agreement” means the Management Services Agreement between Holdings and the Borrower dated February 13, 2007, as the same may be amended, supplemented or modified from time to time as permitted hereunder.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property, operations or financial condition of the Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies (taken as a whole) of the Administrative Agent or the Lenders hereunder or thereunder.
“Material Permitted Acquisition” means any Permitted Acquisition the consideration for which exceeds, on the closing date of the Permitted Acquisition, 10% of the Holdings Total Capitalization on such date.
“Material Real Estate” means any fee-owned real property having a fair market value (as determined in good faith by the Borrower) of at least $7,500,000.
“Material Subsidiary” means, as of the Amendment No. 2 Effective Date or any other date of determination, any Subsidiary of the Borrower (other than an Excluded Subsidiary) that accounts for either (a) two and a half percent (2.5%) or more of the consolidated revenue of the Borrower and its Subsidiaries as determined in accordance with GAAP or (b) two and a half percent (2.5%)
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or more of the Holdings Total Capitalization, in each case measured for the period of four consecutive fiscal quarters ended on the last day of the then most recently ended fiscal quarter with respect to which financial statements have been prepared by the Borrower.
“Material Wholly Owned Domestic Subsidiary” means, as of the Closing Date or any other date of determination, any Wholly Owned Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States of America that accounts for either (a) five percent (5%) or more of the consolidated revenue of the Borrower and its Subsidiaries as determined in accordance with GAAP or (b) five percent (5%) or more of the Holdings Total Capitalization, in each case measured for the period of four consecutive fiscal quarters ended on the last day of the then most recently ended fiscal quarter with respect to which financial statements have been prepared by the Borrower.
“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances, materials or wastes that are regulated pursuant to or could give rise to liability under any Environmental Law.
“Maturity Date” means (a) in connection with a Revolving Credit Facility, (i) the Revolving Credit Maturity Date, (ii) any maturity date related to any Class of Extended Revolving Credit Commitments, or (iii) any maturity date related to any Class of Replacement Revolving Credit Commitments, as applicable and (b) in connection with the Initial Term Loans (i) the Initial Term Loan Maturity Date, (ii) the Incremental Term Maturity Date with respect to such Incremental Term Loans, (iii) any maturity date related to any Class of Extended Term Loans or (iv) any maturity date related to any Class of Replacement Term Loans, as applicable.
“Minimum Liquidity” has the meaning assigned to such term in Section 7.17.
“Minimum Liquidity Requirement” has the meaning assigned to such term in Section 7.17.
“Monthly Reporting Package” means a report in form and substance substantially similar to the example thereof delivered to the Administrative Agent prior to the Amendment No. 2 Effective Date.
“Mortgages” means 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.
“Multiemployer Plan” means a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” means (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof received by any Loan Party 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 such proceeds are received) of such Asset Sale or Recovery Event, net of attorneys’ fees, other consultants’ fees, accountants’ fees, investment banking or brokerage fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees and expenses actually incurred in connection therewith and net of Taxes paid or reasonably estimated to be payable by the
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Borrower, any member thereof or otherwise as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and net of reserve amounts established by the Borrower or any Subsidiary for liabilities reasonably anticipated in connection with such Asset Sale or Recovery Event so long as such reserve amounts are comprised of segregated cash or Cash Equivalents and will constitute Net Cash Proceeds to the extent such reserve amounts are no longer required to be maintained and are not paid and (b) in connection with any issuance or sale of debt securities or instruments, the cash proceeds received by any Loan Party from such issuance, net of attorneys’ fees, other consultants’ fees, investment banking or brokerage fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
“New Incremental Loan” means, individually, the Incremental Loan made by each New Incremental Loan Lender to Borrower pursuant to Sections 2.1(c) and 2.25, and collectively, the “New Incremental Loans” means all New Incremental Loans of the New Incremental Loan Lenders. The New Incremental Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.
“New Incremental Loan Commitment” means, with respect to each New Incremental Loan Lender, the commitment, if any, of such New Incremental Loan Lender to make a New Incremental Loan hereunder in the amount set forth on Annex I to Amendment No. 2 or on Schedule 1 to the Assignment and Assumption pursuant to which such New Incremental Loan Lender assumed its New Incremental Loan Commitment, as applicable, as the same may be increased or decreased from time to time in accordance with the terms of this Agreement. The aggregate principal amount of the New Incremental Loan Lenders’ New Incremental Loan Commitments on the Amendment No. 2 Effective Date is $50,000,000.
“New Incremental Loan Funding Date” means March 12, 2021 or any preceding Business Day on or after the Amendment No. 2 Effective Date.
“New Incremental Loan Lender” means (a) the financial institutions and other Persons party to Amendment No. 2 providing New Incremental Loan Commitments on the Amendment No. 2 Effective Date, and (b) each financial institution or other Person that becomes a party hereto as a Lender with regard to any New Incremental Loan pursuant to an Assignment and Assumption, other than, in each case, any such financial institution or Person that has ceased to be a party hereto with regard to any New Incremental Loan pursuant to an Assignment and Assumption.
“New Incremental Loan Maturity Date” means with respect to the New Incremental Loans, December 20, 2024.
“New Revolving Credit Facility Prepayment Condition” means that, at the applicable time, the amount of the Borrower’s Unrestricted Cash on hand after giving effect to the proposed prepayment of the principal amount of Indebtedness under the Revolving Credit Agreement is equal to or greater than the greater of (i) $95,000,000 and (ii) the amount of the Borrower’s Unrestricted Cash as of the Amendment No. 3 Effective Date, inclusive of the net cash proceeds of the Revolving Credit Loans (as defined in the Revolving Credit Agreement) funded under the Revolving Credit Agreement on the Amendment No. 3 Effective Date; provided that not later than January 10, 2022, the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower stating the amount of Unrestricted Cash as of the Amendment No. 3 Effective Date.
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“Non-Debt Fund Affiliate” means Holdings and any other Affiliate of the Borrower or any of its Subsidiaries, other than any Debt Fund Affiliate.
“Non-Excluded Taxes” means any Taxes, other than net income Taxes, franchise Taxes (imposed in lieu of net income Taxes) and branch profits taxes imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or Lender and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connections arising solely from the Administrative Agent’s or such Lender’s having executed, delivered, become a party to, performed its obligations or received payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced, this Agreement or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Note” means any promissory note evidencing any Loan.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans, the Reimbursement Obligations, any Specified Cash Management Obligations and all other obligations and liabilities of the Loan Parties to the Administrative Agent or to any Lender (or, with respect to any Specified Cash Management Obligations, any Affiliate of any Lender) or any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, in each case which arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement, any Cash Management Agreement (to the extent Specified Cash Management Obligations are owing with respect thereto) or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided, that (i) obligations of the Borrower or any Subsidiary under any Specified Hedge Agreement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements; provided, further, that Obligations shall not include any Excluded Swap Obligations.
“OFAC”: as defined in Section 4.22(b).
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“Offered Amount”: as defined in Section 2.11(c)(iv).
“Offered Discount”: as defined in Section 2.11(c)(iv).
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes imposed with respect to an assignment and that are imposed as a result of a present or former connection between the Lender and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connections arising solely from the Administrative Agent’s having executed, delivered, become a party to, performed its obligations or received payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced, this Agreement or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document) (other than an assignment made pursuant to Section 2.24).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight borrowings of Eurodollar Loans by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
“Participant” shall have the meaning as defined in Section 10.6(a).
“Participant Register”: as defined in Section 10.6(a).
“Participating Lender”: as defined in Section 2.11(c)(iii).
“PATRIOT Act”: the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Payment Office” means the office specified from time to time by the Administrative Agent as its payment office by written notice to the Borrower and the Lenders.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
“Permitted Acquisition” shall have the meaning as defined in Section 7.8(l).
“Permitted Refinancing” means with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) if such Permitted Refinancing is permitted to be secured, such Permitted Refinancing shall not be secured by Collateral on a basis that is senior to the Liens securing the Obligations (except in the case of
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purchase money financings or Capital Lease Obligations being refinanced, where the existing related Indebtedness is secured by such a senior Lien on the applicable Collateral) and (c) 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.
“Permitted Unsecured Indebtedness” shall have the meaning as defined in Section 7.2(o).
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Plan” means at a particular time, any employee benefit plan that is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.
“Preferred Equity” shall have the meaning as defined in Section 1.1 of the Borrower LLC Operating Agreement.
“Pricing Grid” means with respect to the Revolving Credit Loans, the table set forth below:
Pricing Level | Consolidated Net Senior Secured Leverage Ratio | Applicable Margin for Base Rate Loans | Applicable Margin for Eurodollar Loans | ||||||||||||||
I | Greater than 3.50 to 1.00 | 2.50% | 3.50% | ||||||||||||||
II | Less than or equal to 3.50 to 1.00, but greater than 2.75 to 1.00 | 2.25% | 3.25% | ||||||||||||||
III | Less than or equal to 2.75 to 1.00 | 2.00% | 3.00% |
For purposes of the Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Net Senior Secured Leverage Ratio shall become effective on the date (the “Adjustment Date”) that is three Business Days after the date on which financial statements are delivered to the Lenders pursuant to Section 6.1 and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified by Section 6.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, Pricing Level I shall apply to the Revolving Credit Loans. In addition, at all times while an Event of Default shall have occurred and be continuing, Pricing Level I shall apply to the Revolving Credit Loans.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any
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similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Prior Senior Secured Note Indenture” means the Indenture, dated as of April 27, 2012, entered into by the Borrower in connection with the issuance of the Prior Senior Secured Notes.
“Prior Senior Secured Notes” the 6.00% senior secured notes of the Borrower due 2022 and issued pursuant to the Prior Senior Secured Note Indenture. The Prior Senior Secured Notes are no longer outstanding.
“Pro Forma Cost Savings” means, with respect to any period, the reduction in costs that would have occurred since the beginning of such period that are (1) directly attributable to an acquisition and calculated on a basis that is consistent with Article II of Regulation S-X under the Securities Act as in effect on the date of this Agreement or (2) implemented by the business that was the subject of any such acquisition within one year of the date of the acquisition and that are supportable by the underlying accounting records of such business, as if, in the case of each of clauses (1) and (2), all such reductions in costs had been effected as of the beginning of such period, decreased by any incremental expenses (except to the extent capitalized on the Borrower’s consolidated balance sheet) incurred or to be incurred since the beginning of the period in order to achieve such reduction in costs.
“Projections” shall have the meaning as defined in Section 6.2(b).
“Property” means as to any Person, any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.
“Q3Q4 End Date” means the date of delivery of the Compliance Certificate pursuant to Section 6.2(a)(ii) in connection with the fiscal quarter ending on or about September 29, 2022December 28, 2023.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Qualified Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified Counterparty” means with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a Lender or an affiliate of a Lender.
“Qualifying Lenders”: as defined in Section 2.11(c)(iv).
“Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim (other than business interruption insurance) or any condemnation proceeding relating to any asset of the Borrower or any of its Subsidiaries that yields Net Cash Proceeds in excess of $10,000,000.
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“Reference Period” shall have the meaning as defined in the definition of “Consolidated EBITDA”.
“Prior Senior Secured Note Indenture” means the Indenture, dated as of April 27, 2012, entered into by the Borrower in connection with the issuance of the Prior Senior Secured Notes.
“Prior Senior Secured Notes” the 6.00% senior secured notes of the Borrower due 2022 and issued pursuant to the Prior Senior Secured Note Indenture. The Prior Senior Secured Notes are no longer outstanding.
“Refinancing Notes” shall have the meaning as defined in Section 10.1.
“Refunded Swing Line Loans” shall have the meaning as defined in Section 2.7.
“Refunding Date” shall have the meaning as defined in Section 2.7.
“Register” shall have the meaning as defined in Section 10.6(d).“Regulation U” means Regulation U of the Board as in effect from time to time.
“Reimbursement Obligation” means the obligation of the Borrower to reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.
“Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Removal Effective Date” shall have the meaning as defined in Section 9.9.
“Replacement Facility” shall have the meaning as defined in Section 2.28(a).
“Replacement Facility Amendment” shall have the meaning as defined in Section 2.28(c).
“Replacement Facility Closing Date” shall have the meaning as defined in Section 2.28(c).
“Replacement Revolving Credit Commitments” shall have the meaning as defined in Section 2.28(d).
“Replacement Revolving Facility” shall have the meaning as defined in Section 2.28(a).
“Replacement Revolving Credit Loans” means any loan made to the Borrower under a Class of Replacement Revolving Credit Commitments.
“Replacement Term Loans” shall have the meaning as defined in Section 10.1.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived.
“Representative Supplement” means the Representative Supplement No. 3, dated as of the Closing Date, among the Borrower, the Administrative Agent as collateral agent for the First-
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Lien Secured Parties under the First Lien Security Documents and as Authorized Representative for the Credit Agreement Secured Parties (as such terms are defined in the Existing Intercreditor Agreement), and the Collateral Agent.
“Required Lenders” means at any time, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding; provided, that the Revolving Credit Commitments of, and the portion of the Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Lenders.
“Requirement of Law” means as to any Person, the Certificate of Incorporation and ByLaws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, chief financial officer, treasurer or general counsel of Holdings (in its capacity as manager of the Borrower), but in any event, with respect to financial matters, the chief executive officer or chief financial officer of Holdings (in its capacity as manager of the Borrower).
“Restricted Payments” shall have the meaning as defined in Section 7.6.
“Revolver Extension Date” shall have the meaning as defined in Section 2.27(d).
“Revolving Credit Agreement” means that certain Revolving Credit Agreement, dated as of the Amendment No. 3 Effective Date, among the Borrower, the lenders party thereto from time to time, Wilmington Savings Fund Society, FSB, as administrative agent and collateral agent and the other parties thereto from time to time, as the same has been or may be amended, restated, amended and restated, refinanced, replaced, supplemented or otherwise modified from time to time in accordance with Section 7.9.
“Revolving Credit Commitment” means with respect to each Revolving Credit Lender, such Revolving Credit Lender’s commitment to make Revolving Credit Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to the terms hereof (including by establishing a separate tranche of revolving loans), or in an Assignment and Acceptance pursuant to which such lender shall have assigned or assumed its Revolving Credit Commitment, or in any Incremental Amendment, as applicable. The amount of each Revolving Credit Lender’s Revolving Credit Commitment is set forth on Schedule 2.3 or in the Assignment and Assumption or Incremental Amendment pursuant to which such Revolving Credit Lender shall have assumed its Revolving Credit Commitment, as applicable. The aggregate amount of the Revolving Credit Commitments in effect on the Closing Date is $175,000,000.
“Revolving Credit Commitment Increase” shall have the meaning as defined in Section 2.25.
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“Revolving Credit Commitment Increase Lender” shall have the meaning as defined in Section 2.25.
“Revolving Credit Commitment Period” means the period from and including the Closing Date to the latest Revolving Credit Termination Date.
“Revolving Credit Facility” shall have the meaning as defined in the definition of “Facility” in this Section 1.1.
“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.
“Revolving Credit Loans” shall have the meaning as defined in Section 2.4.
“Revolving Credit Maturity Date” means the means subject to Section 2.27, the fifth anniversary of the Closing Date.
“Revolving Credit Note” shall have the meaning as defined in Section 2.8.
“Revolving Credit Percentage” means as to any Revolving Credit Lender at any time, the percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate principal amount of the Total Revolving Extensions of Credit then outstanding); provided that, when a Defaulting Lender shall exist, “Revolving Credit Percentage” shall mean the percentage of the Total Revolving Credit Commitments (disregarding any Defaulting Lender’s Revolving Credit Commitment) represented by such Lender’s Revolving Credit Commitment.
“Revolving Credit Termination Date” means the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Revolving Credit Lenders shall have no more L/C Obligations.
“Revolving Extensions of Credit” means as to any Revolving Credit Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (b) such Lender’s Revolving Credit Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Credit Percentage of the aggregate principal amount of Swing Line Loans then outstanding.
“Sanction” shall have the meaning as defined in Section 4.22(c).
“Sanctioned Country” shall have the meaning as defined in Section 4.22(c).
“SEC” means the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).
“Secured Parties” shall have the meaning as defined in the Guarantee and Collateral Agreement.
“Security Documents” means the collective reference to the Guarantee and Collateral Agreement, the Mortgages, if any, and all other security documents hereafter delivered to the
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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.
“Senior Secured Note 2028 Indenture” means the Indenture, dated as of October 8, 2019, entered into by the Borrower in connection with the issuance of the Senior Secured 2028 Notes, together with all instruments and other agreements entered into by the Borrower in connection therewith, as the same may be amended, supplemented or modified from time to time in accordance with Section 7.9.
“Senior Secured 2028 Notes” the 5.875% senior secured notes of the Borrower due 2028 and issued pursuant to the Senior Secured Note 2028 Indenture.
“Senior Unsecured Note Indenture” means the Indenture, dated as of August 19, 2016, entered into by the Borrower in connection with the issuance of the Senior Unsecured Notes, together with all instruments and other agreements entered into by the Borrower in connection therewith, as the same may be amended, supplemented or modified from time to time in accordance with Section 7.9.
“Senior Unsecured Notes” the 5.750% Senior Unsecured Notes of the Borrower due 2026 and issued pursuant to the Senior Unsecured Notes Indenture.
“Single Employer Plan” means any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“Solicited Discount Proration”: as defined in Section 2.11(c)(iv).
“Solicited Discounted Prepayment Amount”: as defined in Section 2.11(c)(iv).
“Solicited Discounted Prepayment Response Date”: as defined in Section 2.11(c)(iv).
“Solvent” means with respect to any Person, as of any date of determination, that on such date (a) the amount of the present fair saleable value of the property of such Person will, as of such date, exceed the amount of all debts of such Person at a fair valuation, contingent or otherwise, as of such date, (b) the Loan Parties on a consolidated basis will not have, as of such date, an unreasonably small amount of capital with which to conduct its business as then conducted, and (c) such Person will generally be able to pay their debts as they mature.
“Specified Cash Management Obligations” means Cash Management Obligations that (a) are owed pursuant to a Cash Management Agreement in effect on the Closing Date, entered into with a party that was the Administrative Agent or a Lender as of the Closing Date or an Affiliate thereof, or (b) are owed pursuant to a Cash Management Agreement entered into after the Closing Date with a party that was the Administrative Agent or a Lender or an Affiliate of a Lender or the Administrative Agent, in each case at the time such Cash Management Agreement was entered into, and, in the case of any such Cash Management Agreement referred to in clause (a) or (b) above (other than any such Cash Management Agreement entered into with the Administrative Agent or an Affiliate thereof), has been designated by the Borrower in a written notice given to the Administrative Agent (to be distributed by the Administrative Agent, in the case of a Cash Management Agreement entered into with a Lender, to such Lender) as a Cash Management Agreement the obligations under which are to constitute Specified Cash Management Obligations for purposes of the Loan Documents.
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“Specified Discount”: as defined in Section 2.11(c)(ii).
“Specified Discounted Prepayment Amount”: as defined in Section 2.11(c)(ii).
“Specified Discount Prepayment Notice” means a written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.11(c)(ii)(a) substantially in a form mutually agreed to by the Borrower, the Auction Agent and the Administrative Agent.
“Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in a form mutually agreed to by the Borrower, the Auction Agent and the Administrative Agent, to a Specified Discount Prepayment Notice.
“Specified Discount Proration”: as defined in Section 2.11(c)(ii).
“Specified Discounted Prepayment Response Date”: as defined in Section 2.11(c)(ii).
“Specified Existing Revolving Credit Commitment Class”: as defined in Section 2.27(a).
“Specified Existing Term Loan Commitment Class”: as defined in Section 2.27(a).
“Specified Hedge Agreement” means any Hedge Agreement entered into by the Borrower or any Subsidiary Guarantor and any Qualified Counterparty.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentage shall include those imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Submitted Amount”: as defined in Section 2.11(c)(iii).
“Submitted Discount”: as defined in Section 2.11(c)(iii).
“Subordinated Indebtedness” means any Indebtedness that is contractually subordinated in right of payment to the Obligations or is secured by Liens that are junior to the Liens securing the Obligations.
“Subsidiary” means as to any Person, a corporation, partnership, limited liability company or other entity (a) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership 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, or (b) the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person but only if, in the case of this clause (b), such entity is treated as a consolidated
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subsidiary under GAAP. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” means each Material Subsidiary that becomes a party to the Guarantee and Collateral Agreement pursuant to Section 6.10(b). As of the Amendment No. 23 Effective Date, the Borrower has no Subsidiaries.
“Supermajority Revolving Credit Facility Lenders” means, at any time, with respect to the Revolving Credit Facility, the holders of more than 60% of the Total Revolving Extensions of Credit then outstanding (or, prior to any termination of the Revolving Credit Commitments, the holders of more than 60% of the Total Revolving Credit Commitments then in effect); provided, that the Revolving Credit Commitments of any Defaulting Lender shall be excluded for purposes of making a determination of the Supermajority Revolving Credit Facility Lenders.
“Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line Commitment” means the obligation of the Swing Line Lender to make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to exceed $20,000,000.
“Swing Line Lender” means JPMorgan Chase Bank, N.A., in its capacity as the lender of Swing Line Loans.
“Swing Line Loans” shall have the meaning as defined in Section 2.6.
“Swing Line Note” shall have the meaning as defined in Section 2.8.
“Swing Line Participation Amount” shall have the meaning as defined in Section 2.7.
“Syndication” shall have the meaning as defined in Section 10.22.
“Syndication Procedures” shall have the meaning as defined in Section 10.22.
“Taxes” means 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.
“Tax Receivable Agreement” means the Tax Receivable Agreement by and among Holdings, the Borrower, the Founding Members and the ESA Parties dated as of the Closing Date, as the same may be amended, supplemented or modified from time to time as permitted hereunder.
“Term Loan” means an Initial Term Loan or an Incremental Term Loan (including the New Incremental Loans, as Incremental Term Loans).
“Term Loan Commitment” means as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower as set forth in (a) the Assignment and Acceptance pursuant to which such Lender became a party hereto or (b) in the case of an Incremental Term Loan, the applicable Incremental Amendment, in each case as the same may be changed from time to time
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pursuant to the terms hereof. The aggregate amount of the Term Loan Commitments as of the Closing Date is $270,000,000.
“Term Loan Extension Date” shall have the meaning as defined in Section 2.27(e).
“Term Loan Facility” shall have the meaning as defined in the definition of “Facility” in this Section 1.1.
“Term Loan Lender” means each Lender that has a Term Loan Commitment or is the holder of a Term Loan.
“Term Loan Percentage” means as to any Term Loan Lender at any time, the percentage which such Lender’s Term Loan Commitment then constitutes of the aggregate Term Loan Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).
“Term Note” shall have the meaning as defined in Section 2.8(e).
“Total Revolving Credit Commitment” means the sum of the Revolving Credit Commitments of all the Lenders; provided that solely for the purposes of calculating the Total Revolving Credit Commitments at any time of determination (other than as such term is used in the definition of Revolving Credit Percentage), the Revolving Credit Commitment of any Revolving Credit Lender shall be deemed to be equal to the Revolving Extensions of Credit of such Revolving Credit Lender at such time.
“Total Revolving Extensions of Credit” means at any time, the aggregate amount of the Revolving Extensions of Credit of the Revolving Credit Lenders outstanding at such time.
“Trade Date” shall have the meaning as defined in Section 10.6(i)(i).
“Transaction” shall have the meaning as defined in the second recital hereto.
“Transferee” shall have the meaning as defined in Section 10.14.
“Type” means as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.
“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided, however, that, in the event that, by reason of any provisions of law, any of the attachment, perfection or priority of the Administrative Agent’s and the Secured Parties’ security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority,
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which includes certain institutions and investment firsts, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unrestricted Cash” means cash or Cash Equivalents of the Borrower or any of its Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower or such Subsidiary in accordance with GAAP; provided that, cash or Cash Equivalents that would appear as “restricted” on a consolidated balance sheet of the Borrower and its Subsidiaries solely because such cash or Cash Equivalents are subject to a Control Agreement in favor of the Administrative Agent (and/or the administrative agents, collateral agent or trustee for theagents or trustees for the Revolving Credit Agreement and/or the Senior Secured 2028 Notes (or, in each case, any Permitted Refinancing thereof)) shall constitute Unrestricted Cash hereunder. It is understood and agreed that the cash proceeds of the loans funded under the Revolving Credit Agreement shall not be “restricted” for purposes hereof solely on account of such proceeds being held in a segregated deposit or securities account in compliance with Section 6.15 of this Agreement and/or the effect of the requirements of Sections 4.16 and/or 7.16 of the Revolving Credit Agreement.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded in making such calculation.
“Wholly Owned Subsidiary” means as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
“Write-Down and Conversion Powers” means (a) 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 and (b) with respect to the United Kingdom, any power of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or a part of that liability into shares, securities or obligations of that person or any person, to provide that such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under the Bail-In Legislation that are related to or ancillary to any of those powers.
1.2Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
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(a)As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement, and either the Borrower or the Administrative Agent (at the request of the Required Lenders) shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio or requirement so as to equitably reflect such change in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change in GAAP had not been made (subject to the approval of the Required Lenders); provided, however, that, (i) until so amended, (A) such ratio or requirement shall continue to be computed in accordance with GAAP, as applicable, prior to such change therein and (B) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation, in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such ratio or requirement made before and after giving effect to such change in GAAP and (ii) notwithstanding any other provision contained herein, (A) the amount of any Capital Lease Obligation shall at all times be calculated in accordance with the definition of that term, and (B) any lease that is treated as an operating lease for purposes of GAAP as of the Closing Date shall continue to be treated as an operating lease (and any future lease, if it were in effect on the Closing Date, that would be treated as an operating lease for purposes of GAAP as of the Closing Date shall be treated as an operating lease), in each case for purposes of this Agreement, notwithstanding any change in GAAP after the Closing Date. For purposes of making all financial calculations to determine compliance with Section 7.1 (Financial Condition Covenant) and any other financial ratio hereunder, all components of such calculations shall be adjusted to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any business or assets that have been acquired by the Borrower or any of its Subsidiaries (including through Permitted Acquisitions) after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by the Borrower on a pro forma basis after giving effect to such acquisition.
(b)The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including this Agreement and the other Loan Documents) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, extended, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, amendment and restatements, extensions, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, consolidated, replaced, interpreted, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and
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assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.
(c)All calculations of financial ratios set forth in Section 7.1 shall be calculated to the same number of decimal places as the relevant ratios are expressed in and shall be rounded upward if the number in the decimal place immediately following the last calculated decimal place is five or greater. For example, if the relevant ratio is to be calculated to the hundredth decimal place and the calculation of the ratio is 5.126, the ratio will be rounded up to 5.13.
(d)References herein to fiscal periods ending on March 31, June 30, September 29 or December 31 during any fiscal year of the Borrower shall mean the applicable fiscal period of the Borrower ending on or about such date.
(e)Notwithstanding any provision of this Agreement or any other Loan Document, no Guarantee by any Subsidiary Guarantor under any Loan Document shall include a Guarantee of any Obligation that, as to such Subsidiary Guarantor, is an Excluded Swap Obligation and no Collateral provided by any Subsidiary Guarantor shall secure any Obligation that, as to such Subsidiary Loan Party, is an Excluded Swap Obligation. In the event that any payment is made by, or any collection is realized from, any Subsidiary Guarantor as to which any Obligations are Excluded Swap Obligations, or from any Collateral provided by such Subsidiary Guarantor, the proceeds thereof shall be applied to pay the Obligations of such Subsidiary Guarantor as otherwise provided herein without giving effect to such Excluded Swap Obligations and each reference in this Agreement or any other Loan Document to the ratable application of such amounts as among the Obligations or any specified portion of the Obligations that would otherwise include such Excluded Swap Obligations shall be deemed so to provide.
1.3 Interest Rates; LIBOR Rates.
The interest rate on a Loan denominated in dollars or an alternative currency may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform. Regulators have signaled the need to use alternative benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks may cease to comply with applicable laws and regulations, may be permanently discontinued, and/or the basis on which they are calculated may change. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate.
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Upon the occurrence of the events described in Sections 2.17(a) and (b), the Administrative Agent will promptly notify the Borrower, pursuant to Section 2.17, of any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.17(c), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.
1.4 Divisions. For all purposes under the Loan Documents, if pursuant to any division or plan of division under the Delaware Limited Liability Company Act (or any comparable event under comparable laws of a different jurisdiction): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person created as part of such division, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence as part of such division, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
SECTION 2.AMOUNT AND TERMS OF COMMITMENTS
2.1Term Loan Commitments. Subject to the terms and conditions hereof, the Initial Term Loan Lenders severally agree to make term loans to the Borrower on the Closing Date in an amount for each Term Loan Lender not to exceed the amount of the Term Loan Commitment of such Lender. Subject to the terms hereof, and solely the conditions set forth in Section 5.3 of this Agreement, each New Incremental Loan Lender agrees to make New Incremental Loans to the Borrower on the New Incremental Loan Funding Date denominated in dollars in a principal amount of (but not exceeding) such New Incremental Loan Lender’s New Incremental Loan Commitment. The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.
2.2Procedure for Term Loan Borrowing. The Borrower shall deliver (by hand delivery, fax or other electronic transmission (including “.pdf’ or “.tif’)) to the Administrative Agent a Borrowing Notice (which Borrowing Notice must be received by the Administrative Agent prior to (a) 12:00 Noon, New York City time, three Business Days prior to the requested Borrowing Date (or, in the case of a Eurodollar Loan to be made on the Closing Date, such later time as the Administrative Agent may permit in its sole discretion), in the case of Eurodollar Loans, or (b) 11:00 A.M., New York City time, on the requested Borrowing Date, in the case of Base Rate Loans) requesting that the Term Loan Lenders make the Term Loans on the Closing Date, or (c) in respect of the New Incremental Loan, on the New Incremental Loan Funding Date. Upon receipt of such Borrowing Notice the Administrative Agent shall promptly notify each applicable Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing Date, or the New Incremental Loan Funding Date, as the case may be, each applicable Term Loan Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall make available to the Borrower the
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aggregate of the amounts made available to the Administrative Agent by the Term Loan Lenders, in like funds as received by the Administrative Agent.
2.3Repayment of Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the applicable Initial Term Loan Lenders on the last Business Day of each March, June, September and December, commencing with the last Business Day of September, 2018, an aggregate principal amount equal to 0.25% of the aggregate principal amount of the Initial Term Loans outstanding on the Closing Date. To the extent not previously paid, all outstanding Initial Term Loans shall be due and payable on the Initial Term Loan Maturity Date. The Borrower shall repay to the Administrative Agent for the ratable account of the applicable New Incremental Loan Lenders on the last Business Day of each March, June, September and December, commencing with the last Business Day of June, 2021, an aggregate principal amount equal to 0.25% of the aggregate principal amount of the New Incremental Loans outstanding on the New Incremental Loan Funding Date. To the extent not previously paid, all outstanding New Incremental Loans shall be due and payable on the New Incremental Loan Maturity Date.
2.4Revolving Credit Commitments. (a) (a) Subject to the terms and conditions hereof, the Revolving Credit Lenders severally agree to make revolving credit loans (“Revolving Credit Loans”) to the Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding for each Revolving Credit Lender which, when added to such Lender’s Revolving Credit Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swing Line Loans then outstanding (other than Swing Line Loans to be repaid with the proceeds of such Revolving Credit Loans to be borrowed), does not exceed the amount of such Lender’s Revolving Credit Commitment. During the Revolving Credit Commitment Period the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the latest Revolving Credit Termination Date.
(b)The Borrower shall repay all outstanding Revolving Credit Loans on the applicable Revolving Credit Maturity Date.
2.5Procedure for Revolving Credit Borrowing. The Borrower may borrow under the Revolving Credit Commitments on any Business Day during the Revolving Credit Commitment Period, provided that the Borrower shall deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice must be received by the Administrative Agent prior to (a) 12:00 Noon, New York City time, three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) 11:00 A.M., New York City time, on the requested Borrowing Date, in the case of Base Rate Loans); provided that any such notice of a borrowing of Base Rate Loans to finance the reimbursement of a Letter of Credit as contemplated by Section 3.5 may be given not later than 10 A.M., New York City time, on the date of the proposed borrowing. Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall be in an amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate Available Revolving Credit Commitments are less than $1,000,000 or such incremental amount, such lesser amount); provided, that the Swing Line Lender may request, on behalf of the Borrower, borrowings of Base Rate Loans under the
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Revolving Credit Commitments in other amounts pursuant to Section 2.7. Upon receipt of any such Borrowing Notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender of the relevant Class thereof. Each Revolving Credit Lender will make its Revolving Credit Percentage of the amount of each borrowing of Revolving Credit Loans available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent in like funds as received by the Administrative Agent.
2.6Swing Line Commitment. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees that, during the Revolving Credit Commitment Period, it will make available to the Borrower in the form of swing line loans (“Swing Line Loans”) a portion of the credit otherwise available to the Borrower under the Revolving Credit Commitments; provided that (i) the aggregate principal amount of Swing Line Loans outstanding at any time shall not exceed the Swing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at any time, when aggregated with the Swing Line Lender’s other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in effect or such Swing Line Lender’s Revolving Credit Commitment then in effect) and (ii) the Borrower shall not request, and the Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to the making of such Swing Line Loan, the aggregate amount of the Available Revolving Credit Commitments would be less than zero. During the Revolving Credit Commitment Period, the Borrower may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only. The Borrower shall repay all outstanding Swing Line Loans on the Revolving Credit Maturity Date.
2.7Procedure for Swing Line Borrowing; Refunding of Swing Line Loans. (a) (a) The Borrower may borrow under the Swing Line Commitment on any Business Day during the Revolving Credit Commitment Period, provided, the Borrower shall give the Swing Line Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date. Each borrowing under the Swing Line Commitment shall be in an amount equal to $250,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in the borrowing notice in respect of any Swing Line Loan, the Swing Line Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of such Swing Line Loan. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower on such Borrowing Date in like funds as received by the Administrative Agent.
(b)The Swing Line Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf), on one Business Day’s notice given by the Swing Line Lender no later than 12:00 Noon, New York City time, request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall initially be a Base Rate Loan), in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date of such notice, to repay the Swing Line Lender. Each Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the
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Administrative Agent at the Funding Office in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Credit Loans shall be made immediately available by the Administrative Agent to the Swing Line Lender for application by the Swing Line Lender to the repayment of the Refunded Swing Line Loans.
(c)If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 2.7(a), one of the events described in Section 8(f) shall have occurred and be continuing with respect to the Borrower, or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(a), each Revolving Credit Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in Section 2.7(a) (the “Refunding Date”), purchase for cash an undivided participating interest in the then outstanding Swing Line Loans by paying to the Swing Line Lender an amount (the “Swing Line Participation Amount”) equal to (i) such Revolving Credit Lender’s Revolving Credit Percentage times (ii) the sum of the aggregate principal amount of Swing Line Loans then outstanding which were to have been repaid with such Revolving Credit Loans.
(d)Whenever, at any time after the Swing Line Lender has received from any Revolving Credit Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender receives any payment on account of the Swing Line Loans, the Swing Line Lender will distribute to such Lender its Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender.
(e)Each Revolving Credit Lender’s obligation to make the Loans referred to in Section 2.7(a) and to purchase participating interests pursuant to Section 2.7(b) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
2.8Repayment of Loans; Evidence of Debt. (a) (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be, (i) the then unpaid principal amount of each Revolving Credit Loan of the Revolving Credit Lender on the applicable Revolving Credit Maturity Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8), (ii) the then unpaid principal amount of each Swing Line Loan of such Swing Line Lender on the Revolving Credit Maturity Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8), (iii) the then unpaid principal amount of each Initial Term Loan of such Initial Term Loan Lender on the Initial Term Loan Maturity
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Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8); (iv) the then unpaid principal amount of each New Incremental Loan of such New Incremental Loan Lender on the New Incremental Loan Maturity Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8) and (v) the then unpaid principal amount of each Incremental Term Loan of such Incremental Term Loan Lender on the Incremental Term Loan Maturity Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the Closing Date until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.15.
(b)Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each 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, on behalf of the Borrower, shall maintain the Register pursuant to Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan 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 Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(d)The accounts of each Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that 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 Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement; provided, further, that if such accounts are inconsistent with the Register, the Register shall prevail.
(e)The Borrower agrees that, upon the request by the Administrative Agent as a result of a request to the Administrative Agent by any Lender, the Borrower will promptly execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans, substantially in the form of Exhibit D-1, Revolving Credit Loans substantially in the form of Exhibit D-2, or Swing Line Loans substantially in the form of Exhibit D3, as the case may be (a “Term Note”, “Revolving Credit Note” or “Swing Line Note”, respectively), with appropriate insertions as to date and principal amount; provided, that delivery of Notes shall not be a condition precedent to the occurrence of the Closing Date or the making of the Loans or issuance of Letters of Credit on the Closing Date.
2.9Commitment Fees, etc. (a) (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee for the period from and including the Closing Date to the Revolving Credit Termination Date, in each case, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Credit Commitment of such Revolving Credit Lender during the period for which payment is made, payable quarterly in arrears on the last Business Day of each March, June, September and December and on the latest Revolving Credit Termination Date, commencing on the first of such dates to occur after the Closing Date.
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(b)The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates from time to time agreed to in writing by the Borrower and the Administrative Agent.
2.10Termination or Reduction of Revolving Credit Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent may permit in its sole discretion), to terminate the Revolving Credit Commitments or, from time to time, to reduce the aggregate amount of the Revolving Credit Commitments; provided that no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans and Swing Line Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Credit Commitments then in effect. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that if such a notice of termination of the Revolving Credit Commitments delivered by the Borrower expressly states that such notice is conditioned upon the effectiveness of other credit facilities or the closing of a specified transaction, such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
2.11Optional Prepayments.
(a)The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty (except as otherwise provided in clause (b) below), upon irrevocable notice (except as otherwise provided in clause (a)(iii) below) delivered to the Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior thereto (or such later time as the Administrative Agent may permit in its sole discretion) in the case of Eurodollar Loans and no later than 11:00 A.M., New York City time, one Business Day prior thereto (or such later time as the Administrative Agent may permit in its sole discretion) in the case of Base Rate Loans, which notice shall specify the date and amount of such prepayment, whether such prepayment is of Term Loans or Revolving Credit Loans, and whether such prepayment is of Eurodollar Loans or Base Rate Loans; provided, that (i) if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21, (ii) no prior notice is required for the prepayment of Swing Line Loans and (iii) if such a notice of prepayment expressly states that such notice is conditioned upon the effectiveness of other credit facilities or the closing of a specified transaction, such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Revolving Credit Loans that are Base Rate Loans and Swing Line Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or such lesser amount or integral to repay such Loan in full). Partial prepayments of Swing Line Loans and Revolving Credit Loans shall be in an aggregate principal amount of $100,000 or a whole multiple of $50,000 in excess thereof (or such lesser amount or integral to repay such Loan in full).
(b)The Borrower shall owe and pay to the Administrative Agent, for the ratable account of each applicable New Incremental Loan Lender, any then-applicable
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Applicable New Incremental Loan Premium, which shall be due and payable in connection with (i) any voluntary prepayment pursuant to this Section 2.11, (ii) any mandatory prepayment pursuant to Section 2.12 (other than pursuant to Section 2.12(c) (Excess Cash Flow)) and (iii) any acceleration, including, without limitation, pursuant to Section 8, in each case in respect of any New Incremental Loans being paid, repaid, prepaid or accelerated, and including, without limitation, as a result of the restructuring, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any insolvency proceeding. In the event that (i) the Borrower makes any voluntary prepayment pursuant to this Section 2.11, or makes any mandatory prepayment pursuant to Section 2.12 (other than pursuant to Section 2.12(c) (Excess Cash Flow)), of Initial Term Loans on or prior to the one-year anniversary of the Amendment No. 2 Effective Date or (ii) the Initial Term Loans are accelerated prior to the one-year anniversary of the Amendment No. 2 Effective Date, including, without limitation, pursuant to Section 8, and including, without limitation, as a result of the restructuring, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any insolvency proceeding, then the Applicable Premium shall be due and payable and the Borrower shall owe and pay the Applicable Premium to the Administrative Agent, for the ratable account of each applicable Lender, in respect of the Initial Term Loans so paid, repaid, prepaid or accelerated. IT IS UNDERSTOOD AND AGREED THAT IF THE INITIAL TERM LOANS OR THE NEW INCREMENTAL LOANS ARE ACCELERATED OR OTHERWISE BECOME DUE (EXCLUDING ANY PREPAYMENT DUE PURSUANT TO SECTION 2.12(C)) PRIOR TO THEIR MATURITY DATE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY EVENT OF DEFAULT DESCRIBED UNDER SECTION 8(F), THE APPLICABLE PREMIUM AND/OR THE APPLICABLE NEW INCREMENTAL LOAN PREMIUM, IF ANY, AS THE CASE MAY BE, WILL ALSO AUTOMATICALLY BE DUE AND PAYABLE (TO THE EXTENT OTHERWISE APPLICABLE TO A PAYMENT OR PREPAYMENT ON SUCH DATE) AS THOUGH THE INITIAL TERM LOANS AND/OR THE NEW INCREMENTAL LOANS WERE BEING VOLUNTARILY PAID, PREPAID OR REPAID AND SHALL CONSTITUTE PART OF THE OBLIGATIONS WITH RESPECT TO THE LOANS. THE APPLICABLE PREMIUM AND/OR APPLICABLE NEW INCREMENTAL LOAN PREMIUM PAYABLE IN ACCORDANCE WITH THE IMMEDIATELY PRECEDING SENTENCE SHALL BE PRESUMED TO BE THE LIQUIDATED DAMAGES SUSTAINED BY EACH LENDER AS THE RESULT OF THE EARLY TERMINATION, AND THE LOAN PARTIES AGREE THAT IT IS REASONABLE UNDER THE CIRCUMSTANCES AND WILL NOT BE DEEMED TO CONSTITUTE A PENALTY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM AND/OR APPLICABLE NEW INCREMENTAL LOAN PREMIUM. The Loan Parties expressly acknowledge that their agreement to pay the Applicable Premium and/or the Applicable New Incremental Loan Premium as herein described is a material inducement to the Lenders to fund or continue, as applicable, the New Incremental Loans or the Initial Term Loans.
(c)Notwithstanding anything in this Agreement (including but not limited to Sections 2.8 and 2.18 (which provisions shall not be applicable to any redemptions, repurchases or repayments or prepayments of any Term Loan for cash pursuant to this Section 2.11(c))) or in any other Loan Document to the contrary, but subject to Section 2.11(e), so long as no Event of Default has occurred and is continuing, the Borrower may prepay the outstanding Term Loans or Extended Term Loans (which shall, for the avoidance of doubt, be automatically and permanently canceled immediately upon acquisition by the Borrower) on the following basis:
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(i)The Borrower shall have the right to make a voluntary prepayment of Term Loans or Extended Term Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Loan Prepayment”), in each case made in accordance with this Section 2.11(c).
(ii)Borrower Offer of Specified Discount Prepayment:
(A)The Borrower may from time to time offer to make a Discounted Loan Prepayment by providing the Auction Agent five (5) Business Days’ notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Borrower, to (x) each Term Loan Lender and/or (y) each Extending Term Loan Lender with respect to any Class of Loans on an individual tranche basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Term Loan Lender or each Extending Term Loan Lender, as applicable, with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York City time, on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business Days upon notice by the Borrower to the Auction Agent) (the “Specified Discount Prepayment Response Date”).
(B)Each Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the tranches of such Lender’s Loans to be prepaid at such offered discount. Each acceptance of a Discounted Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.
(C)If there is at least one Discount Prepayment Accepting Lender, the Borrower will make a prepayment of outstanding Loans pursuant to this paragraph (ii) to each Discount Prepayment Accepting Lender on the
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Discounted Prepayment Effective Date in accordance with the respective outstanding amount and tranches of Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (b) above; provided that, if the aggregate principal amount of Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the Borrower of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Term Loan Lender or Extending Term Loan Lender, as applicable. of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and Type of Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and such Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by Borrower on the Discounted Prepayment Effective Date in accordance with subsection (vi) below (subject to subsection (x) below).
(iii)Borrower Solicitation of Discount Range Prepayment Offers.
(A)The Borrower may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with 5 Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to (x) each Term Loan Lender and/or (y) each Extending Term Loan Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant tranche of Loans willing to be prepaid by the Borrower (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice
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and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business Days upon notice by the Borrower to the Auction Agent) (the “Discount Range Prepayment Response Date”). Each Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify one or more (but no more than three for any Lender) discounts to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lender’s Loans (the “Submitted Amount”) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.
(B)The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (ii). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and