AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.3
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2, dated as of March 20, 2023 (this “Amendment”) to the Credit Agreement, dated as of January 29, 2020, among Buzz BidCo L.L.C., a Delaware limited liability company (“Holdings”), Buzz Xxxxx L.L.C., a Delaware limited liability company (and successor by merger to Worldwide Vision Limited, the “Borrower”), the other Guarantors party thereto from time to time, the lenders party thereto from time to time and Citibank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Swing Line Lender and an L/C Issuer (as amended by Amendment No. 1, dated as of October 19, 2020 and as further amended, restated, amended and restated, modified and supplemented prior to the date hereof, the “Credit Agreement” and as amended by this Amendment, the “Amended Credit Agreement”); capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
WHEREAS, pursuant to the definition of “Eurocurrency Rate” set forth in the Credit Agreement, the Borrower and the Administrative Agent have reasonably determined in good faith that a Benchmark Discontinuation Event has occurred and the Borrower has requested an amendment to the Credit Agreement to replace the LIBO Screen Rate with a Successor Benchmark Rate;
WHEREAS, pursuant to the definition of “Eurocurrency Rate” set forth in the Credit Agreement, the Administrative Agent and the Borrower may enter into an amendment to the Credit Agreement to reflect such alternate rate of interests and such other related changes to the Credit Agreement as may be applicable, and such amendment shall become effective without any further action or consent of any party to the Credit Agreement other than the Borrower and the Administrative Agent;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby, agree as follows:
ARTICLE I
Amendment
Upon execution and delivery of this Amendment by each of the parties hereto, 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: underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto; provided that (A) any Eurocurrency Rate Loans (as defined in the Credit Agreement) outstanding as of the date hereof shall remain Eurocurrency Rate Loans until the end of the applicable Interest Period (as defined in the Credit Agreement) in effect as of the date hereof (but may not be continued as Eurocurrency Rate Loans after such applicable Interest Period) and (B) after the date hereof, any new Loans made (and any Loans into which any existing Loans are converted or continued pursuant to Section 2.02(c) of the Amended Credit Agreement) shall be Loans bearing interest as set forth in the Amended Credit Agreement.
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ARTICLE II
Miscellaneous
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
BUZZ XXXXX L.L.C., as the Borrower |
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By: |
/s/ Xxxxxxxx Xxxxxxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxxxxxx |
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Title: |
Chief Financial Officer |
[Signature Page to Second Amendment]
CITIBANK, N.A., as Administrative Agent |
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By: |
/s/ Xxxxxx-Xxxxxxxxx Xxxxxxxx |
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Name: |
Xxxxxx-Xxxxxxxxx Xxxxxxxx |
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Title: |
Vice President |
[Signature Page to Second Amendment]
CITIBANK, N.A., as a Revolving Credit Lender |
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By: |
/s/ Xxxxxx-Xxxxxxxxx Xxxxxxxx |
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Name: |
Xxxxxx-Xxxxxxxxx Xxxxxxxx |
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Title: |
Vice President |
[Signature Page to Second Amendment]
BARCLAYS BANK PLC, as a Revolving Credit Lender |
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By: |
/s/ Xxxxxx Xxxxx III |
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Name: |
Xxxxxx Xxxxx XXX |
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Title: |
Vice President |
[Signature Page to Second Amendment]
HSBC BANK PLC, as a Revolving Credit Lender |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Associate General Counsel |
[Signature Page to Second Amendment]
INTERNAL
ROYAL BANK OF CANADA, as a Revolving Credit Lender |
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By: |
/s/ Xxxxxxxx Xxxxx |
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Name: |
Xxxxxxxx Xxxxx |
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Title: |
Authorized Signatory |
[Signature Page to Second Amendment]
SUMITOMO MITSUI BANKING CORPORATION, as a Revolving Credit Lender |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: |
Xxxx Xxxxxxx |
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Title: |
Managing Director |
[Signature Page to Second Amendment]
BLACKSTONE HOLDINGS FINANCE CO. |
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L.L.C., as a Revolving Credit Lender |
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Authorized Signatory |
[Signature Page to Second Amendment]
EXHIBIT A
CREDIT AGREEMENT
Dated as of January 29, 2020,
among
BUZZ BIDCO L.L.C.,
as Holdings,
BUZZ MERGER SUB LTD.,
as the Lead Borrower,
BUZZ XXXXX L.L.C.,
as the Other Borrower Party,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
CITIBANK, N.A.,
as Administrative Agent, Collateral Agent and Swing Line Lender,
and
THE LENDERS AND L/C ISSUERS PARTY HERETO FROM TIME TO TIME
CITIGROUP GLOBAL MARKETS INC.,
BARCLAYS BANK PLC,
HSBC BANK PLC,
RBC CAPITAL MARKETS LLC1
and
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arrangers and Bookrunners
BLACKSTONE HOLDINGS FINANCE CO. L.L.C.,
as Co-Manager
1 RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.
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TABLE OF CONTENTS
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Page |
ARTICLE 1
Definitions and Accounting Terms
Section 1.01. |
Defined Terms |
8 2 |
Section 1.02. |
Other Interpretive Provisions |
101 88 |
Section 1.03. |
Accounting Terms |
105 93 |
Section 1.04. |
Rounding |
106 94 |
Section 1.05. |
References to Agreements, Laws, Etc |
107 94 |
Section 1.06. |
Times of Day |
107 94 |
Section 1.07. |
Timing of Payment or Performance |
107 94 |
Section 1.08. |
Cumulative Credit Transactions |
107 94 |
Section 1.09. |
Additional Approved Currencies |
107 94 |
ARTICLE 2
The Commitments and Credit Extensions
Section 2.01. |
The Loans |
108 96 |
Section 2.02. |
Borrowings, Conversions and Continuations of Loans |
109 97 |
Section 2.03. |
Letters of Credit |
111 99 |
Section 2.04. |
Swing Line Loans |
123 110 |
Section 2.05. |
Prepayments |
128 114 |
Section 2.06. |
Termination or Reduction of Commitments |
145 129 |
Section 2.07. |
Repayment of Loans |
146 130 |
Section 2.08. |
Interest |
147 131 |
Section 2.09. |
Fees |
147 131 |
Section 2.10. |
Computation of Interest andFees |
148 132 |
Section 2.11. |
Evidence of Indebtedness |
148 132 |
Section 2.12. |
Payments Generally |
149 133 |
Section 2.13. |
Sharing of Payments |
151 135 |
Section 2.14. |
Incremental Credit Extensions |
152 136 |
Section 2.15. |
Refinancing Amendments |
161 144 |
Section 2.16. |
Extension of Term Loans; Extension of Revolving Credit Loans |
163 145 |
Section 2.17 |
Defaulting Lenders |
167 149 |
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ARTICLE 3
Taxes, Increased Costs Protection and Illegality
Section 3.01. |
Taxes |
169 152 |
Section 3.02. |
Illegality |
173 156 |
Section 3.03. |
Inability to Determine Rates |
174 156 |
Section 3.04. |
Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency RateTerm SOFR Loans |
174 157 |
Section 3.05. |
Funding Losses |
176 158 |
Section 3.06. |
Matters Applicable to All Requests for Compensation |
177 159 |
Section 3.07. |
Replacement of Lenders under Certain Circumstances |
178 160 |
Section 3.08. |
Survival |
180 161 |
ARTICLE 4
Conditions Precedent to Credit Extensions
Section 4.01. |
Conditions to Initial Credit Extension |
180 162 |
Section 4.02. |
Conditions to All Credit Extensions |
183 164 |
ARTICLE 5
Representations and Warranties
Section 5.01. |
Existence, Qualification and Power; Compliance with Laws |
184 166 |
Section 5.02. |
Authorization; No Contravention |
184 166 |
Section 5.03. |
Governmental Authorization; OtherConsents |
184 166 |
Section 5.04. |
Execution, Delivery and Enforceability |
185 167 |
Section 5.05. |
Financial Statements; No Material Adverse Effect |
185 167 |
Section 5.06. |
Litigation |
186 167 |
Section 5.07. |
Ownership of Property; Liens; Real Property |
186 168 |
Section 5.08. |
EnvironmentalMatters |
186 168 |
Section 5.09. |
Taxes |
187 169 |
Section 5.10. |
ERISA Compliance |
187 169 |
Section 5.11. |
Subsidiaries; Equity Interests |
188 169 |
Section 5.12. |
Margin Regulations; Investment Company Act |
188 170 |
Section 5.13. |
Disclosure |
188 170 |
Section 5.14. |
Labor Matters |
189 170 |
Section 5.15. |
Intellectual Property; Licenses, Etc |
189 170 |
Section 5.16. |
Solvency |
189 171 |
Section 5.17. |
Subordination of Junior Financing |
189 171 |
Section 5.18. |
OFAC; USA PATRIOTAct; FCPA |
190 171 |
Section 5.19. |
Security Documents |
190 171 |
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ARTICLE 6
Affirmative Covenants
Section 6.01. |
Financial Statements |
192 174 |
Section 6.02. |
Certificates; Other Information |
194 176 |
Section 6.03. |
Notices |
196 177 |
Section 6.04. |
Taxes |
196 178 |
Section 6.05. |
Preservation of Existence, Etc |
196 178 |
Section 6.06. |
Maintenance of Properties |
196 178 |
Section 6.07. |
Maintenance of Insurance |
197 178 |
Section 6.08. |
Compliance with Laws |
197 179 |
Section 6.09. |
Books and Records |
198 179 |
Section 6.10. |
Inspection Rights |
198 179 |
Section 6.11. |
Additional Collateral; Additional Guarantors |
198 180 |
Section 6.12. |
Compliance with Environmental Laws |
201 182 |
Section 6.13. |
Further Assurances |
201 182 |
Section 6.14. |
Designation of Subsidiaries |
201 182 |
Section 6.15. |
Maintenance of Ratings |
202 183 |
Section 6.16. |
Post-Closing Covenants |
202 183 |
Section 6.17. |
Change in Nature of Business |
202 183 |
Section 6.18. |
Useof Proceeds |
202 183 |
Section 6.19. |
Accounting Changes |
202 183 |
ARTICLE 7
Negative Covenants
Section 7.01. |
Liens |
203 184 |
Section 7.02. |
Investments |
209 190 |
Section 7.03. |
Indebtedness |
213 194 |
Section 7.04. |
Fundamental Changes |
220 200 |
Section 7.05. |
Dispositions |
222 202 |
Section 7.06. |
Restricted Payments |
226 206 |
Section 7.07. |
Transactions with Affiliates |
231 211 |
Section 7.08. |
Burdensome Agreements |
232 212 |
Section 7.09. |
Financial Covenant |
233 213 |
Section 7.10. |
Prepayments, Etc. of Indebtedness |
233 213 |
Section 7.11. |
Permitted Activities |
235 215 |
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ARTICLE 8
Events of Default and Remedies
Section 8.01. |
Events of Default |
235 216 |
Section 8.02. |
Remedies Upon Event of Default |
238 218 |
Section 8.03. |
Exclusion of Immaterial Subsidiaries |
239 219 |
Section 8.04. |
Application of Funds |
239 219 |
Section 8.05. |
Right to Cure |
240 220 |
ARTICLE 9
Administrative Agent and Other Agents
Section 9.01. |
Appointment and Authorization of Agents |
242 222 |
Section 9.02. |
Delegation of Duties |
243 223 |
Section 9.03. |
Liability of Agents |
243 223 |
Section 9.04. |
Reliance by Agents |
244 224 |
Section 9.05. |
Notice of Default |
245 224 |
Section 9.06. |
Credit Decision; Disclosure of Information by Agents |
245 225 |
Section 9.07. |
Indemnification of Agents |
246 225 |
Section 9.08. |
Agents in Their Individual Capacities |
246 226 |
Section 9.09. |
Successor Agents |
247 226 |
Section 9.10. |
Administrative Agent May File Proofs of Claim |
248 227 |
Section 9.11. |
Collateral and Guaranty Matters |
249 229 |
Section 9.12. |
Other Agents; Arrangers and Managers |
252 231 |
Section 9.13. |
Withholding Tax Indemnity |
252 231 |
Section 9.14. |
Appointment of Supplemental Agents |
253 232 |
Section 9.15. |
Certain ERISA Matters |
253 232 |
ARTICLE 10
Miscellaneous
Section 10.01. |
Amendments, Etc. |
255 234 |
Section 10.02. |
Notices and Other Communications; Facsimile Copies |
259 238 |
Section 10.03. |
No Waiver; Cumulative Remedies |
261 239 |
Section 10.04. |
Attorney Costsand Expenses |
261 239 |
Section 10.05. |
Indemnification by theBorrowers |
262 240 |
Section 10.06. |
Payments Set Aside |
263 241 |
Section 10.07. |
Successors and Assigns |
264 242 |
Section 10.08. |
Confidentiality |
275 252 |
Section 10.09. |
Setoff |
277 253 |
Section 10.10. |
Interest Rate Limitation |
277 254 |
Section 10.11. |
Counterparts |
278 254 |
Section 10.12. |
Integration; Termination |
278 254 |
Section 10.13. |
Survival of Representations and Warranties |
278 255 |
Section 10.14. |
Severability |
278 255 |
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Section 10.15. |
GOVERNING LAW, PROCESS AGENT |
279 255 |
Section 10.16 |
WAIVER OF RIGHT TO TRIAL BY JURY |
280 256 |
Section 10.17 |
Binding Effect |
280 256 |
Section 10.18 |
USA PATRIOT Act |
280 257 |
Section 10.19 |
No Advisory or Fiduciary Responsibility |
281 257 |
Section 10.20 |
Electronic Execution of Assignments |
282 258 |
Section 10.21 |
Effect of Certain Inaccuracies |
282 258 |
Section 10.22 |
Judgment Currency |
283 259 |
Section 10.23 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
283 259 |
Section 10.24 |
Cashless Rollovers |
284 259 |
Section 10.25 |
Acknowledgment Regarding Any Supported QFCs. |
284 260 |
Section 10.26 |
Lead Borrower. |
285 260 |
ARTICLE 11
GUARANTY
Section 11.01. |
The Guaranty |
285 262 |
Section 11.02. |
Obligations Unconditional |
285 262 |
Section 11.03. |
Reinstatement |
287 263 |
Section 11.04. |
Subrogation; Subordination |
287 263 |
Section 11.05. |
.Remedies |
287 264 |
Section 11.06. |
Instrument for the Payment of Money |
288 264 |
Section 11.07. |
Continuing Guaranty |
288 264 |
Section 11.08. |
General Limitation on Guarantee Obligations |
288 264 |
Section 11.09. |
Information |
288 264 |
Section 11.10. |
Release of Guarantors |
288 264 |
Section 11.11. |
Right of Contribution |
289 265 |
Section 11.12. |
Cross-Guaranty |
289 265 |
SCHEDULES
1.01A |
Commitments |
1.01B |
Collateral Documents |
1.01C |
Unrestricted Subsidiaries |
5.05 |
Certain Liabilities |
5.06 |
Litigation |
5.07 |
Ownership of Property |
5.09 |
Taxes |
5.11 |
Subsidiaries and Other EquityInvestments |
6.16 |
Post-Closing Covenants |
7.01(b) |
Existing Liens |
7.02(f) |
Existing Investments |
7.03(b) |
Existing Indebtedness |
7.05(f) |
Dispositions |
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7.07 |
Transactions withAffiliates |
7.08 |
Certain Contractual Obligations |
10.02 |
Administrative Agent’s Office |
10.02(a) |
Notice Information |
11 |
Agreed Security Principles |
EXHIBITS
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Form of |
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A |
Committed LoanNotice |
B |
Letter of Credit Issuance Request |
C |
Swing LineLoan Notice |
D-1 |
Term Note |
D-2 |
Revolving CreditNote |
D-3 |
Swing LineNote |
E-1 |
Compliance Certificate |
E-2 |
Solvency Certificate |
F |
Assignment and Assumption |
G |
Security Agreement |
H |
Perfection Certificate |
I |
Intercompany Note |
J-1 |
First LienIntercreditor Agreement |
J-2 |
Junior LienIntercreditor Agreement |
K |
Administrative Questionnaire |
L-1 |
Affiliated Lender Assignment and Assumption |
L-2 |
Affiliated Lender Notice |
L-3 |
Acceptance and Prepayment Notice |
L-4 |
Discount Range Prepayment Notice |
L-5 |
Discount Range Prepayment Offer |
L-6 |
Solicited Discounted Prepayment Notice |
L-7 |
Solicited Discounted Prepayment Offer |
L-8 |
Specified Discount Prepayment Notice |
L-9 |
Specified Discount Prepayment Response |
M |
United StatesTax Compliance Certificate |
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as the same may be amended, modified, refinanced and/or restated from time to time, this “Agreement”) is entered into as of January 29, 2020, among Buzz Merger Sub Ltd., an exempted company incorporated with limited liability under the laws of Bermuda (the “Lead Borrower”), Buzz Xxxxx L.L.C., a Delaware limited liability company (the “Other Borrower Party” hereunder), Buzz BidCo L.L.C., a Delaware limited liability company (“Holdings”), the other Guarantors (such term and any other capitalized terms used but not defined in this introductory paragraph and the Preliminary Statements below are defined in Section 1.01 below) party hereto from time to time, CITIBANK, N.A., as Administrative Agent, Collateral Agent and Swing Line Lender, each L/C Issuer and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).
PRELIMINARY STATEMENTS
Pursuant to that certain Agreement and Plan of Merger, dated as of November 8, 2019 (as amended, supplemented or otherwise modified and in effect from time to time, and including all schedules and exhibits thereto, the “Merger Agreement”), by and among Buzz Holdings L.P., the Lead Borrower, Worldwide Vision Limited (the “Company”) and Buzz SR Limited, in its capacity as the Seller Representative, the Company will merge with and into the Lead Borrower (the “Acquisition”) with the Lead Borrower as the surviving company.
The Borrowers have requested that the applicable Lenders extend credit to the Borrowers in the form of (i) the Initial Term Loans on the Closing Date in an initial aggregate principal amount of $575,000,000 and (ii) the Revolving Credit Facility in an initial aggregate principal amount of $50,000,000.
The proceeds of the Initial Term Loans, together with the proceeds of the Equity Investment will be used by the Borrowers to directly or indirectly consummate the Transactions, to pay the costs and expenses related to the Transactions and to fund cash to the Lead Borrower’s balance sheet.
The proceeds of the Revolving Credit Facility will also be used by the Borrowers and their Restricted Subsidiaries to replace, backstop or cash collateralize existing Letters of Credit, for working capital and general corporate purposes (including permitted acquisitions) subject to the terms set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
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ARTICLE 1
Definitions and Accounting Terms
Section 1.01. Defined Terms. As used in this Agreement (including in the Preliminary Statements hereto), the following terms shall have the meanings set forth below:
“2020 Special Dividend” means a special one-time Restricted Payment to be made with the proceeds of the Incremental Amendment No. 1 Term Loans and/or cash on the balance sheet of the Borrower and its Restricted Subsidiaries, in an aggregate principal amount not in excess of $75,000,000.
“Acceptable Discount” has the meaning set forth in Section 2.05(a)(v)(D)(2). “Acceptable Prepayment Amount” has the meaning set forth in Section
2.05(a)(v)(D)(3).
“Acceptance and Prepayment Notice” means a notice of the Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit L-3.
“Acceptance Date” has the meaning set forth in Section 2.05(a)(v)(D)(2).
“Accounting Change” means any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.
“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary (determined as if references to the Lead Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Acquired Entity or Business and its Subsidiaries or to such Converted Restricted Subsidiary and its Subsidiaries), as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable.
“Acquired Entity or Business” has the meaning set forth in the definition of the term “Consolidated EBITDA.”
“Acquisition” has the meaning set forth in the Preliminary Statements to this Agreement.
“Additional Lender” has the meaning set forth in Section 2.14(c).
“Additional Refinancing Lender” has the meaning set forth in Section 2.15(a).
“Adjusted Daily Simple SOFR” means, for any Interest Period, a rate per annum equal to (i) with respect to Initial Term Loans and Incremental Amendment No. 1 Term Loans, Daily Simple SOFR plus 0.10% and (ii) with respect to Revolving Credit Loans, Daily Simple SOFR plus 0.00%; provided that if Adjusted Daily Simple SOFR would be less than the Applicable Term SOFR Floor, such rate shall be deemed equal to the Applicable Term SOFR Floor.
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“Adjusted Term SOFR” means, for any Interest Period, a rate per annum equal to (i) with respect to Initial Term Loans and Incremental Amendment No. 1
Term Loans, Term SOFR plus 0.10% and (ii) with respect to Revolving Credit Loans, Term SOFR plus 0.00%; provided that if Adjusted Term SOFR would be less than the Applicable Term SOFR Floor, such rate shall be deemed equal to the Applicable Term SOFR Floor.
“Administrative Agent” means Citi, in its capacity as administrative agent under any of the Loan Documents, or as applicable, such Affiliates thereof as Citi shall from time to time designate for the purpose of performing its obligations hereunder in such capacity, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Lead Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in the form of Exhibit K or such other form as may be supplied from time to time by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Affiliated Lender” means, at any time, any Lender that is a direct or indirect holding company of Holdings or an Investor (including portfolio companies of the Investors notwithstanding the exclusion in the definition of “Investors”) (other than Holdings, the Lead Borrower or any of its Subsidiaries and other than any Debt Fund Affiliate) or a Non-Debt Fund Affiliate of an Investor at such time.
“Affiliated Lender Assignment and Assumption” has the meaning set forth in Section 10.07(l)(i).
“Affiliated Lender Cap” has the meaning set forth in Section 10.07(l)(iii). “Affiliated Lender Notice” means the notice substantially in the form of Exhibit L-2.
“Agency Fee Letter” means that certain Administrative Agency Fee Letter, dated as of January 29, 2020, by and among the Borrowers and Citibank, N.A., as Administrative Agent and Collateral Agent.
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, partners, agents, advisors, attorneys-in- fact and other representatives of such Persons and Affiliates.
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“Agents” means, collectively, the Administrative Agent, the Collateral Agent and the Supplemental Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders. “Agreed Borrower Jurisdiction” means each of Bermuda and the United States. “Agreed Security Jurisdiction” means each of Bermuda, England and Wales and the United States.
“Agreed Security Principles” means the agreed guarantee and security principles set forth on Schedule 11.
“Agreement” means this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“All-In Yield” means, as to any Indebtedness, the yield thereof incurred or payable by the applicable borrower generally to all Lenders of such Indebtedness in an amount equal to the sum of (a) the applicable margin; (b) OID and upfront fees; provided that (i) OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity on a straight line basis (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and (ii) “All-In Yield” shall not include amendment fees, arrangement fees, structuring fees, commitment fees, underwriting fees and any similar fees payable to any lead arranger (or its affiliates) in connection with the commitment or syndication of such Indebtedness, consent fees paid to consenting Lenders, ticking fees on undrawn commitments and any other fees not paid or payable generally to all Lenders in the primary syndication of such Indebtedness and (c) the interest rate (excluding the applicable margin) after giving effect to any Eurocurrency RateApplicable Term SOFR Floor or Base Rate floor; provided, that if any Incremental Term Loans (or any other applicable Indebtedness) include a Eurocurrency Ratean Applicable Term SOFR Floor or Base Rate floor that is greater than the Eurocurrency RateApplicable Term SOFR Floor or Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included in the calculation of All-In Yield, but only to the extent an increase in the Eurocurrency RateApplicable Term SOFR Floor or Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurocurrency RateApplicable Term SOFR Floor and Base Rate floors (but not the Applicable Rate, unless the Lead Borrower otherwise elects in its sole discretion) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors.
“Applicable Asset Sale Percentage” means, (a) 100.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available is greater than 3.25 to 1.00, (b) 50.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available is equal to or less than 3.25 to 1.00 and greater than 2.75 to 1.00 and (c) 0.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available is equal to or less than 2.75 to 1.00, in each case, calculated on a Pro Forma Basis.
“Applicable Authority” means the Term SOFR Administrator or a Governmental Authority having jurisdiction over the Administrative Agent.
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“Applicable Discount” has the meaning set forth in Section 2.05(a)(v)(C)(2).
“Applicable ECF Percentage” means, for any fiscal year, (a) 50.0% if theConsolidated First Lien Net Leverage Ratio as of the last day of such fiscal year is greater than 3.25 to 1.00, (b) 25.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 3.25 to 1.00 and greater than 2.75 to 1.00 and (c) 0.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 2.75 to 1.00, in each case, calculated on a Pro Forma Basis.
“Applicable Period” has the meaning set forth in Section 10.21. “Applicable Proceeds” has the meaning set forth in Section 2.05(b)(ii). “Applicable Rate” means:
and
Applicable Rate |
||||||
Pricing Level |
|
Consolidated First Lien Net Leverage Ratio |
|
Eurocurrency Rate Term SOFR for Revolving Credit Loans and Letter of Credit Fees |
|
Base Rate for Revolving Credit Loans |
1 |
|
> 3.25 to 1.00 |
|
2.75% |
|
1.75% |
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5 |
|
2 |
|
≤ 3.25 to 1.00 and > 2.75 to 1.00 |
|
2.50% |
|
1.50% |
3 |
|
≤ 2.75 to 1.00 |
|
2.25% |
|
1.25% |
Notwithstanding the foregoing, after the consummation of a Qualified IPO (as certified by the Lead Borrower to the Administrative Agent), the Applicable Rate at each of the categories above in this clause (c) shall automatically be reduced further by 0.25%.
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that at the option of the Administrative Agent or the Required Lenders, the highest pricing level (e.g., Pricing Level 1) shall apply as of (x) the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section 8.01(a) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
“Applicable Term SOFR Floor” means the Term SOFR or Daily Simple SOFR floor applicable to any Facility under which a Loan is being made and (a) solely with respect to the Incremental Amendment No. 1 Term Loans, means 0.50% per annum and (b) solely with respect to the Initial Term Loans and the Revolving Credit Facility, means 0.00% per annum.
“Applicable Time” means, with respect to any Borrowings and payments in any Approved Foreign Currency, the local time in the place of settlement for such Approved Foreign Currency as shall be reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment. In advance of the initial borrowing of a Revolving Credit Loan or issuance of a Letter of Credit, in each case, in any Approved Foreign Currency, the Administrative Agent or the applicable L/C Issuer, as applicable, shall provide the Lead Borrower and Revolving Credit Lenders with written notice of the Applicable Time for any borrowings and payments in such Approved Foreign Currency. In the event no such notice is delivered by the Administrative Agent, the Borrowers and any Revolving Credit Lender shall be required to make any borrowings and payments in accordance with the times specified herein for borrowings and payments in Dollars.
“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to Letters of Credit, (i) the relevant L/C Issuer (if applicable) and (ii) the Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
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6 |
|
“Approved Counterparty” means (i) any Agent, Lender or any Affiliate of an Agent or Lender at the time it entered into a Swap Contract or a Treasury Services Agreement, as applicable, in its capacity as a party thereto, notwithstanding whether such Approved Counterparty may cease to be an Agent, Lender or an Affiliate of an Agent or Lender thereafter and (ii) any other Person from time to time approved in writing by the Administrative Agent (not to be unreasonably withheld, delayed or conditioned).
“Approved Currency” means each of (i) Dollars and (ii) any other currency that is approved in accordance with Section 1.09.
“Approved Foreign Currency” means any Approved Currency other than Dollars.
“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or
(c) an entity or an Affiliate of an entity that administers, advises or manages such Xxxxxx. “Assignees” has the meaning set forth in Section 10.07(b).
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit F hereto.
“Assignment Taxes” has the meaning set forth in Section 3.01(b).
“Attorney Costs” means and includes the reasonable and documented out-of- pocket fees, disbursements and other charges of any law firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Financing Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Lead Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.05(a)(v); provided that the Lead 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 Borrowers nor any of their Affiliates may act as the Auction Agent.
“Audited Financial Statements” means the audited statements of profit or loss, other comprehensive income, financial position, changes in equity, and cash flows (together with any notes thereto) of the Company and its Subsidiaries as of December 31, 2018, December 31, 2017 and December 31, 2016.
“Auto-Extension Letter of Credit” has the meaning set forth in Section 2.03(b)(iii).
“Available Incremental Amount” has the meaning set forth in Section 2.14(d)(v).
“Available RP Capacity Amount” means (i) the amount of Restricted Payments that may be made at the time of determination pursuant to Sections 7.06(d), (g), (h), (l) and (p) minus (ii)
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the sum of the amount of the Available RP Capacity Amount utilized by the Lead Borrower or any Restricted Subsidiary to (A) make Restricted Payments in reliance on Sections 7.06 (g), (h), (l) or (p), (B) make Investments pursuant to Section 7.02(n), (C) incur Indebtedness pursuant to Section 7.03(y) and (D) make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity utilizing the Available RP Capacity Amount pursuant to Section 7.10 plus (iii) the aggregate principal amount of Indebtedness prepaid prior to or substantially concurrently at such time, solely to the extent such Indebtedness (A) was secured by Liens pursuant to Section 7.01(bb) or (B) was incurred pursuant to Section 7.03(y) and not secured pursuant to Section 7.01(bb) (it being understood that the amount under this clause (iii) shall only be available for use under Sections 7.01(bb) and/or 7.03(y), as applicable).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any 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 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 Federal Funds Effective Rate in effect on such day plus ½ of 1%, (b) the Prime Rate in effect for such day and (c) the Eurocurrency Rate(i) with respect to Initial Term Loans and Incremental Amendment No. 1 Term Loans, Adjusted Term SOFR or (ii) with respect to Revolving Credit Loans, Term SOFR, in each case, on such day (or if such day is not a Business Day, the immediately preceding Business Day) for deposits in Dollars for a one-month Interest Period plus 1.00%; provided that for the avoidance of doubt, the Eurocurrency RateTerm SOFR for any day shall be the LIBO Screen Rate (or any applicable successor page or such other commercially available published source providing such quotations as may be approved by the Administrative Agent and the Lead Borrower from time to time)based on the Term SOFR Reference Rate, at approximately 11:00 a.m. (London5:00 p.m. (Chicago time) two Business Days prior to such day, for deposits in Dollars with a term of one month commencing on such day. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Base Rate shall be determined without regard to clause (a) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency RateTerm SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency RateTerm SOFR, respectively. Notwithstanding the foregoing, the Base Rate will be deemed to be zero if the Base Rate calculated pursuant to the foregoing provisions would otherwise be less than zero.
“Base Rate Loan” means a Loan denominated in Dollars that bears interest based on the Base Rate.
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8 |
|
“Base Rate Term SOFR Determination Day” has the meaning set forth in the definition of “Term SOFR.”
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“BHC Act Affiliate” of any Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
“Blackstone Funds” means, individually or collectively, any investment fund, co- investment vehicles and/or other similar vehicles or accounts, in each case managed or advised by an Affiliate of The Blackstone Group Inc., or any of their respective successors.
“Bona Fide Debt Fund” means any fund or investment vehicle that is primarily engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and other similar extensions of credit in the ordinary course.
“Borrower Materials” has the meaning set forth in Section 6.02.
“Borrower Offer of Specified Discount Prepayment” means the offer by any Company Party to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to Section 2.05(a)(v)(B).
“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by any Company Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to Section 2.05(a)(v)(C).
“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by any Company Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.05(a)(v)(D).
“Borrowers” means, collectively, the Lead Borrower and the Other Borrower Party; a “Borrower” shall refer to either the Lead Borrower or the Other Borrower Party.
“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing of a particular Class, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York or the state where the Administrative Agent’s Office is located and if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings, disbursements,
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9 |
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settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a day on which dealings in deposits in the applicable Approved Currency are conducted by and between banks in the applicable London interbank market.; provided, however, that, when used in connection with a Term SOFR Loan or Daily SOFR Loan, the term “Business Day” shall mean a U.S. Government Securities Business Day.
“Business Expansion” mean (a) each facility which is either a new facility, branch or office or an expansion, relocation, remodeling or substantial modernization of an existing facility, branch or office owned by the Lead Borrower or the Restricted
Subsidiaries and (b) each creation or expansion into new markets (in one or a series of related transactions) of a business unit to the extent such business unit commences operations or each expansion (in one or a series of related transactions) of business into a new market.
“Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Financing Leases) by the Lead Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flows of the Lead Borrower and its Restricted Subsidiaries.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Lead Borrower and its Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Lead Borrower and its Restricted Subsidiaries.
“Cash Collateral” has the meaning set forth in Section 2.03(g).
“Cash Collateral Account” means a blocked account at a commercial bank specified by the Administrative Agent in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
“Cash Collateralize” has the meaning set forth in Section 2.03(g).
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Lead Borrower or any Restricted Subsidiary:
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10 |
|
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11 |
|
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include (a) investments of the type and maturity described in clauses (1) through (8) and clauses (10), (11), (12) and (13) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (13) and in this paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes regardless of the treatment of such items under GAAP.
“Casualty Event” means any event that gives rise to the receipt by the Lead Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or Real Property to replace or repair such equipment, fixed assets or Real Property.
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as subsequently amended, and the regulations promulgated thereunder.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of the Code in which the Borrower or any U.S. person (within the meaning of Section 957(c) of the Code) owns (within the meaning of 958(a) of the Code) 10% or more of the shares therein, as measured by either voting power or value.
“Change of Control” shall be deemed to occur if:
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Notwithstanding the preceding or any provision of Section 13d-3 or 13d-5 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Equity Interests subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement, (ii) if any group (other than a Permitted Holder) includes one or more Permitted Holders, the issued and outstanding Equity Interests of any Borrower owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred and (iii) a Person or group will not be deemed to beneficially own the Equity Interests of another Person as a result of its ownership of the Equity Interests or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting power of the Equity Interests entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Citi” means Citibank, N.A.
“City Code” has the definition in Section 1.02(h).
“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Extended Revolving Credit Commitments of a given Extension Series, Extended Term Loans of a given Extension Series, Revolving Commitment Increases, Other Revolving Credit Commitments, Initial Term Commitments, Incremental Term Commitments (including Incremental Amendment No. 1 Term Commitments) or Refinancing Term Commitments of a given Refinancing Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, Revolving Credit Loans under Revolving Commitment Increases, Revolving Credit Loans under Extended Revolving Credit Commitments of a given Extension Series, Revolving Credit Loans
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under Other Revolving Credit Commitments, Initial Term Loans, Incremental Term Loans (including Incremental Amendment No. 1 Term Loans), Refinancing Term Loans of a given Refinancing Series or Extended Term Loans of a given Extension Series. Revolving Credit Commitments, Incremental Revolving Credit Commitments, Extended Revolving Credit Commitments, Other Revolving Credit Commitments, Initial Term Commitments, Incremental Term Commitments (including Incremental Amendment No. 1 Term Commitments) or Refinancing Term Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class. There shall be no more than an aggregate of four Classes of revolving credit facilities and eight Classes of term loan facilities under this Agreement at any time outstanding under this Agreement. For the avoidance of doubt, the Incremental Amendment No. 1 Term Loans shall constitute a separate Class from the Initial Term Loans on and after the Incremental Amendment No. 1 Effective Date.
“Closing Date” means January 29, 2020, the first date on which all conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.
“Closing Fees” means those fees required to be paid on the Closing Date pursuant to the Fee Letter.
“Co-Manager” means Blackstone Holdings Finance Co. L.L.C. and certain of its Affiliates, in its capacity as a co-manager under this Agreement.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means (i) the “Collateral” as defined in the Security Agreement, (ii) all the “Collateral” or “Pledged Assets” (or similar term) as defined in any other Collateral Document, (iii) Mortgaged Property and (iv) any other assets pledged or in which a Lien is granted, in each case, pursuant to any Collateral Document.
“Collateral Agent” means Citi, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any successor collateral agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
required to be delivered on the Closing Date pursuant to Section 4.01(a) or from time to time pursuant to Section 6.11, Section 6.13, Section 6.16 or the Security Agreement or applicable Foreign Security Document, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;
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14 |
|
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15 |
|
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16 |
|
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
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17 |
|
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18 |
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“Collateral Documents” means, collectively, the Security Agreement, each Foreign Security Document, the Intellectual Property Security Agreements, each of the Mortgages, collateral assignments, security agreements, pledge agreements, intellectual property security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent pursuant to Section 4.01, Section 6.11, Section 6.13 or Section 6.16 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties.
“Commitment” means a Revolving Credit Commitment, Incremental Revolving Credit Commitment, Extended Revolving Credit Commitment of a given Extension Series, Other Revolving Credit Commitment of a given Refinancing Series, Initial Term Commitment, Incremental Term Commitment (including Incremental Amendment No. 1 Term Commitment) or Refinancing Term Commitment of a given Refinancing Series, as the context may require.
“Commitment Fee Rate” means with respect to the unused Revolving Credit Commitments:
Any increase or decrease in the Commitment Fee Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day
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19 |
|
immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that at the option of the Administrative Agent or the Required Lenders, the highest Commitment Fee Rate (e.g., 0.50%) shall apply as of (x) the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Commitment Fee Rate otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section 8.01(a) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Commitment Fee Rate otherwise determined in accordance with this definition shall apply).
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency RateTerm SOFR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Lead Borrower.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company” has the meaning set forth in the Preliminary Statements to this Agreement.
“Company Parties” means the collective reference to Holdings and its Restricted Subsidiaries, including the Borrowers, and “Company Party” means any one of them.
“Compensation Period” has the meaning set forth in Section 2.12(c)(ii). “Compliance Certificate” means a certificate substantially in the form of Exhibit E-1.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period:
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20 |
|
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21 |
|
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22 |
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There shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by the Lead Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed by the Lead Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition) and (B) for the purposes of compliance with the covenant set forth in Section 7.09 and the calculation of the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio,
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and the Consolidated Interest Coverage Ratio, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) by the Lead Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition).
Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement for any period that includes any of the fiscal quarters ended on December 31, 2018, March 31, 2019, June 30, 2019 and September 30, 2019 Consolidated EBITDA for such fiscal quarters shall be $28,419,000, $36,219,000, $40,703,000 and $41,511,000, respectively, in each case, as may be subject to any adjustment set forth in the immediately preceding paragraph for any four-quarter period with respect to any acquisitions, dispositions or conversions occurring after the Closing Date.
“Consolidated First Lien Net Debt” means Consolidated Total Net Debt minus the sum of (i) the portion of Indebtedness of the Lead Borrower or any Restricted Subsidiary included in Consolidated Total Net Debt that is not secured by any Lien on the Collateral and (ii) the portion of Indebtedness of the Lead Borrower or any Restricted Subsidiary included in Consolidated Total Net Debt that is secured by Liens on the Collateral, which Liens are expressly subordinated or junior to the Liens securing the Obligations.
“Consolidated First Lien Net Leverage Ratio” means, with respect to any four- quarter period, the ratio of (a) Consolidated First Lien Net Debt as of the last day of such period to (b) Consolidated EBITDA of the Lead Borrower and its Restricted Subsidiaries for such period.
“Consolidated Interest Coverage Ratio” means, with respect to any four-quarter period, the ratio of (a) Consolidated EBITDA of the Lead Borrower and its Restricted Subsidiaries for such period to (b) Consolidated Interest Expense for the Lead Borrower and its Restricted Subsidiaries for such period.
“Consolidated Interest Expense” means, for any period, the sum, without duplication, of:
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For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Lead Borrower to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
“Consolidated Net Income” means, for any period, the net income (loss) of the Lead Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis, and otherwise determined in accordance with GAAP and before any reduction in respect of preferred stock dividends; provided, however, that, without duplication,
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investment or the amortization or write-off or write-down of any amounts thereof, net of taxes, shall be excluded;
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In addition, to the extent not already included in the Consolidated Net Income of the Lead Borrower and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received or due from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, investment or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement.
“Consolidated Secured Net Debt” means Consolidated Total Net Debt minus the portion of Indebtedness of the Lead Borrower or any Restricted Subsidiary included in Consolidated Total Net Debt that is not secured by any Liens on the Collateral.
“Consolidated Secured Net Leverage Ratio” means, with respect to any four- quarter period, the ratio of (a) Consolidated Secured Net Debt as of the last day of such period to (b) Consolidated EBITDA of the Lead Borrower and its Restricted Subsidiaries for such period.
“Consolidated Total Net Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Lead Borrower and its Restricted Subsidiaries outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any Permitted Acquisition), consisting of Indebtedness for borrowed money, purchase money indebtedness, Attributable Indebtedness, and debt obligations evidenced by promissory notes, bonds, debentures, loan agreements or similar instruments, minus the aggregate
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amount of all unrestricted cash and Cash Equivalents on the balance sheet of the Lead Borrower and its Restricted Subsidiaries as of such date; provided that Consolidated Total Net Debt shall not include Indebtedness (i) in respect of letters of credit (including Letters of Credit), except to the extent of unreimbursed amounts thereunder; provided, further, that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Net Debt until three Business Days after such amount is drawn and (ii) of Unrestricted Subsidiaries; it being understood, for the avoidance of doubt, that obligations under Swap Contracts or in respect of Non-Financing Lease Obligations do not constitute Consolidated Total Net Debt.
“Consolidated Total Net Leverage Ratio” means, with respect to any four-quarter period, the ratio of (a) Consolidated Total Net Debt as of the last day of such period to (b) Consolidated EBITDA of the Lead Borrower and its Restricted Subsidiaries for such period.
“Consolidated Working Capital” means, with respect to the Lead Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.
“Contract Consideration” has the meaning set forth in the definition of “Excess Cash Flow.”
“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” has the meaning set forth in the definition of “Affiliate.”
“Controlled Investment Affiliate” means, as to any Person, any other Person, other than the Investors, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Lead Borrower and/or other companies.
“Converted Restricted Subsidiary” has the meaning set forth in the definition of “Consolidated EBITDA.”
“Converted Unrestricted Subsidiary” has the meaning set forth in the definition of “Consolidated EBITDA.”
“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b) or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning set forth in Section 10.25.
“Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority
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Refinancing Debt, (b) Permitted Junior Lien Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, existing Term Loans and Revolving Credit Loans (or Commitments in respect of Revolving Credit Loans), or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness has a maturity no earlier, and, in the case of Refinancing Term Loans, a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees and expenses associated with the refinancing, (iii) the other terms and conditions of such Indebtedness shall either, at the option of the Lead Borrower (I) reflect terms and conditions that are otherwise as agreed between the Lead Borrower and the lender, holder or other provider of such Credit Agreement Refinancing Indebtedness (provided that to the extent any more restrictive financial maintenance covenant is added for the benefit of such Credit Agreement Refinancing Indebtedness, such financial maintenance covenant shall be added for the benefit of the Revolving Credit Facility that then benefits from such financial maintenance covenant and is remaining outstanding (except to the extent such financial maintenance covenant is applicable only to periods after the Latest Maturity Date of such Revolving Credit Facility)) or (II) if not consistent with the terms of the Refinanced Debt being refinanced or replaced, shall not be materially more restrictive (taken as a whole) on the Lead Borrower and its Restricted Subsidiaries (as determined by the Lead Borrower) than those applicable to the Refinanced Debt being refinanced or replaced (except for (x) pricing, premiums, fees, rate floors and prepayment and redemption terms and (y) covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness and it being understood that to the extent any terms or conditions that are more restrictive than the applicable Facilities is added for the benefit of such (A) Credit Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or refinancing notes or other debt securities (whether issued in a public offering, Rule 144A, private placement or otherwise), no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such terms or conditions are also added for the benefit of each Facility remaining outstanding after the incurrence or issuance of such Credit Agreement Refinancing Indebtedness or (B) Credit Agreement Refinancing Indebtedness in the form of Other Revolving Credit Commitments or Other Revolving Credit Loans, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such terms or conditions (x) are also added for the benefit of the Revolving Credit Facility or (y) applies only to periods after the Latest Maturity Date of such Revolving Credit Facility) (in each case, provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement), and (iv) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, and all commitments thereunder terminated, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.
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“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Cumulative Credit” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
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“Cumulative Retained Asset Sale Proceeds Amount” means the cumulative portion (since the Closing Date) of the Net Proceeds of Dispositions not required to be applied to prepay the Loans pursuant to Section 2.05(b)(ii) due to the Applicable Asset Sale Percentage being less than 100%.
“Cumulative Retained Excess Cash Flow Amount” means the cumulative portion (since the Closing Date), not less than zero, of Excess Cash Flow not required to be applied to prepay the Loans pursuant to Section 2.05(b)(i) due to the Applicable ECF Percentage being less than 100%.
“Current Assets” means, with respect to the Lead Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Cash
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Equivalents) of the Lead Borrower and its Restricted Subsidiaries that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Lead Borrower and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments).
“Current Liabilities” means, with respect to the Lead Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities of the Lead Borrower and its Restricted Subsidiaries that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Lead Borrower and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is past due and unpaid), (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, and (e) any Revolving Credit Exposure.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of SOFR for the day (such day the “SOFR Determination Date”) that is five Business Days (or such other period as determined by the Lead Borrower and the Administrative Agent based on then prevailing market conventions) prior to (i) if such SOFR Rate Day is a Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a Business Day, the Business Day immediately preceding such SOFR Rate Day. If by 5:00 p.m. (New York City time) on the second Business Day immediately following any SOFR Determination Date, the SOFR in respect of such SOFR Determination Date has not been published on the Federal Reserve Bank of New York’s Website and a Replacement Event with respect to the Daily Simple SOFR has not occurred, then the SOFR for such SOFR Determination Date will be the SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the Federal Reserve Bank of New York’s Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than five consecutive U.S. Government Securities Business Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrowers.
“Daily SOFR Loan” means any Loan bearing interest at a rate determined by reference to Daily Simple SOFR and made pursuant to clause (a)(ii) of the definition of “Term SOFR”.
“Debt Fund Affiliate” means (i) any fund or client managed by, or under common management with GSO Capital Partners LP, Blackstone Real Estate Special Situations Advisors L.L.C. and Blackstone Tactical Opportunities Fund L.P., (ii) any fund or client managed by an adviser within the credit focused division of The Blackstone Group Inc. or Blackstone ISG-I Advisors L.L.C., (iii) The Blackstone Strategic Opportunity Funds (including masters, feeders, onshore, offshore and parallel funds), (iv) funds and accounts managed by Blackstone Alternative Solutions, L.L.C. or its Affiliates and (v) any other Affiliate of the Investors or Holdings that is a bona fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course.
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“Debtor Relief Laws” means the Bankruptcy Code of the United States 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 and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning set forth in Section 2.05(b)(viii).
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Revolving Credit Loans that are Base Rate Loans plus (c) 2.0% per annum; provided that with respect to the overdue principal or interest in respect of a Eurocurrency RateTerm SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan, plus 2.0% per annum, in each case to the fullest extent permitted by applicable Laws.
“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 any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default.”
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Designated Equity Contribution” has the meaning set forth in Section 8.05(a).
“Discount Prepayment Accepting Lender” has the meaning set forth in Section 2.05(a)(v)(B)(1).
“Discount Range” has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Prepayment Amount” has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(v)(C)(1) substantially in the form of Exhibit L-4.
“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit L-5, 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” has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Proration” has the meaning set forth in Section 2.05(a)(v)(C)(3).
“Discounted Prepayment Determination Date” has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Discounted Prepayment Effective Date” means in the case of a 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 Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(v)(B)(1), Section 2.05(a)(v)(C)(1) or Section 2.05(a)(v)(D)(1), respectively, unless a shorter period is agreed to between the Lead Borrower and the Auction Agent.
“Discounted Term Loan Prepayment” has the meaning set forth in Section 2.05(a)(v)(A).
“Disposed EBITDA” means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business (determined as if references to the Lead Borrower and its Restricted Subsidiaries in the definition of Consolidated EBITDA (and in the component definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or such Converted Unrestricted Subsidiary and its Subsidiaries) or such Converted Unrestricted Subsidiary, all as determined on a consolidated basis for such Sold Entity or Business or such Converted Unrestricted Subsidiary.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Lease-Back Transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its Equity Interests to another Person.
“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination or expiration of all outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests
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and other than as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the expiration or termination of all outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance of such Equity Interests; provided that if such Equity Interests are issued pursuant to a plan for the benefit of future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of Holdings (or any direct or indirect parent thereof), the Lead Borrower or its Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Lead Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Lenders” means (i) those Persons identified by the Lead Borrower (or one of its Affiliates) or the Sponsor to the Administrative Agent in writing prior to November 8, 2019, (ii) competitors (and such competitors’ sponsors and Affiliates identified in writing or reasonably identifiable as such solely on the basis of their names) of the Lead Borrower identified by the Lead Borrower to the Administrative Agent in writing (x) from time to time prior to the date of the bank meeting in connection with the Initial Term Loans and (y) thereafter (including after the Closing Date) from time to time and (iii) any Affiliate of any Person described in clause (i) or competitor described in clause (ii) that is identified by the Lead Borrower to the Administrative Agent in writing from time to time or reasonably identifiable solely by name as an Affiliate of such Person, other than an Affiliate of such Person that is a Bona Fide Debt Fund; provided that (x) no updates to the list of Disqualified Lenders shall be deemed to retroactively disqualify any parties that have previously validly acquired an assignment or participation in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Lenders and (y) notwithstanding anything herein to the contrary, the Lead Borrower may withhold consent for any assignments to any Affiliate of a Disqualified Lender (to the extent such consent is otherwise required under Section 10.07) regardless of whether such assignee is reasonably identifiable as an Affiliate of a Disqualified Lender solely on the basis of its name (other than with respect to Affiliates that are Bona Fide Debt Funds). The list of Disqualified Lenders shall be made available to any Lender upon request to the Administrative Agent, subject to customary confidentiality requirements.
“Distressed Person” has the meaning set forth in the definition of “Lender-Related Distress Event.”
“Dollar” and “$” mean lawful money of the United States.
“Dollar Denominated Letter of Credit” means any Letter of Credit incurred in Dollars.
“Dollar Denominated Loan” means any Loan incurred in Dollars.