| THE E.W. SCRIPPS COMPANY | ||||||||
By: /s/ Jason Combs | ||||||||
| Name: | Jason Combs | |||||||
| Title: | Chief Financial Officer | |||||||
| Offeror and Borrower | The E.W. Scripps Company (the “Company” or the “Borrower”) | ||||
| Backstop Funding Amount | The amount of New Tranche B-2 Term Loans to be funded by the Backstop Parties (whether in cash or via cashless exchange of Existing Tranche B-2 Loans as described herein), which shall equal the outstanding balance of Existing Tranche B-2 Term Loans that are not actually (a) paid in cash pursuant to clause 6 of the row titled Transaction below, (b) exchanged on a cashless basis for New Tranche B-2 Term Loans by Participating Tranche B-2 Term Loan Lenders pursuant to the commitments made in Section 5(g) of the Transaction Support Agreement or (c) funded by the Funding B-3 Term Loan Lenders that are not Backstop Parties and that agree to fund their pro rata share of the Tranche B-2 Shortfall Amount (the “Backstop Funding Amount”). | ||||
| Existing Credit Agreement | Reference is made to that certain Third Amended and Restated Credit Agreement, dated as of April 28, 2017, by and among the Company, Wells Fargo Bank, National Association, as administrative agent and collateral agent (in such capacity, the “Existing Collateral Agent”) and the other parties thereto from time to time (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”). | ||||
| Existing Intercreditor Agreement | Reference is made to that certain Closing Date Intercreditor Agreement, dated as of January 7, 2021, among the Company, Wells Fargo, as Credit Agreement Administrative Agent, U.S. Bank National Association, as Initial Additional First Lien Collateral Agent, and the other parties thereto from time to time (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Intercreditor Agreement”) | ||||
| Existing Term Loans | The Tranche B-2 Term Loans (the “Existing Tranche B-2 Term Loans”) and Tranche B-3 Term Loans (the “Existing Tranche B-3 Term Loans,” and, together with the Existing Tranche B-2 Term Loans, the “Existing Term Loans”) incurred under the Existing Credit Agreement. | ||||
| Existing Revolving Credit Facility | The revolving credit facility under the Existing Credit Agreement (the “Existing Revolving Credit Facility”; any loans incurred under such facility outstanding as of the date hereof, the “Existing Revolving Loans” and, the lenders with respect to the Existing Revolving Credit Facility, the “Existing Revolving Lenders”). | ||||
| New Credit Agreement | A new first lien credit agreement (the “New Credit Agreement”), which shall include the New Term Loans on the terms set forth in the New Term Loan Term Sheet attached as Exhibit B to the TSA (the “New Term Loan Term Sheet”), the New Revolving Credit Facility on terms set forth in the RCF Commitment Letter and, if applicable, the Non-Extended Revolving Credit Facility on the terms set forth herein. | ||||
| Amended Credit Agreement | The Existing Credit Agreement as amended (the “Amended Credit Agreement”) by an amendment on the terms set forth in the Summary of Consent Solicitations – Existing Credit Agreement attached as Exhibit C to the TSA (the “Summary of Consent Solicitations”). | ||||
| Backstop Parties | The Consenting Holders that are party to the Commitment and Participation Letter that have committed to fund the Backstop Funding Amount by acquiring the New Money Tranche B-2 Term Loans from Barclays Bank PLC in its capacity as the fronting lender (the “Funding Commitment Party”) (such parties, the “Backstop Parties”). | ||||
| Funding Tranche B-3 Term Loan Lenders | Lenders (such Lenders, the “Funding B-3 Term Loan Lenders”) that hold Existing Tranche B-3 Term Loans that agree to fund their pro rata share of the New Tranche B-2 Term Loans in the aggregate amount required to repay in full in cash the Existing Tranche B-2 Term Loans not extended by lenders and holders of Existing Tranche B-2 Term Loans (such amount, the “Tranche B-2 Shortfall Amount”). | ||||
| New Tranche B-2 Term Loans | New first lien tranche B-2 term loans with a latest maturity date of June 30, 2028 incurred under the New Credit Agreement on the terms set forth in the New Term Loan Term Sheet (the “New Tranche B-2 Term Loans”). | ||||
| New Tranche B-3 Term Loans | New first lien tranche B-3 term loans with a latest maturity date of November 30, 2029 incurred under the New Credit Agreement on the terms set forth in the New Term Loan Term Sheet (the “New Tranche B-3 Term Loans” and, together with the New Tranche B-2 Term Loans, the “New Term Loans”). | ||||
| Steerco | That certain steering committee identified by counsel to the Ad Hoc Group to counsel to the Company on the date hereof (the “Steerco,” and each of its members, a “Steerco Member”). | ||||
| A/R Securitization Facility | A new Accounts Receivable Securitization Facility (the “A/R Securitization Facility”) incurred by a special purpose subsidiary of the Company (the “Securitization Vehicle”) with commitments of up to $450,000,000 to be provided in accordance with the Securitization Commitment Letters. The Securitization Vehicle will be a “Securitization Subsidiary” under the New Credit Agreement, the Amended Credit Agreement and each other debt facility of the Company. | ||||
| New Revolving Credit Facility | A new revolving credit facility in an initial amount up to $208,000,000 (the “New Revolving Credit Facility” and any commitments thereunder, the “New Revolving Credit Commitments”; any such loans incurred pursuant to the New Revolving Credit Facility, the “New Revolving Credit Loans” and, the lenders with respect to the New Revolving Credit Facility, the “New Revolving Lenders”) incurred under the New Credit Agreement on the terms set forth in the RCF Commitment Letter. | ||||
| Existing Consenting Revolving Credit Facility | The revolving credit facility, which shall have the same pricing, maturity and financial covenant as the Existing Revolving Facility, but shall benefit from all the other affirmative and negative covenants (other than the financial covenant) in the New Credit Agreement on the same basis as the New Revolving Lenders, and shall be provided by the Existing Revolving Lenders that do not provide commitments under the New Revolving Credit Facility but sign the New Credit Agreement in their capacity as a Non-Extending Revolving Lender (as defined below) (the “Non-Extended Revolving Credit Facility” and any commitments thereunder, the “Non-Extended Revolving Credit Commitments”; any such loans incurred pursuant to the Existing Consenting Revolving Credit Facility, the “Non-Extended Revolving Credit Loans” and, the lenders with respect to the Existing Consenting Credit Facility, the “Non-Extending Revolving Lenders”). Each Non-Extending Revolving Lender shall provide commitments in an amount equal to such Non-Extending Revolving Lender’s commitments under the Existing Revolving Facility. The New Credit Agreement will provide that the Non-Extended Revolving Credit Facility is drawn first prior to any drawings under the New Revolving Credit Facility. | ||||
| Credit Agreement Exchange Offer & Amendment | The Company will conduct an offer (the “Credit Agreement Exchange Offer & Amendment) to: •Amend the Existing Credit Agreement as set forth in the Summary of Consent Solicitations; •Other than $385 million in Existing Tranche B-2 Term Loans (which are to be repaid in cash with proceeds of the A/R Securitization Facility and/or cash on hand and/or proceeds of the New Revolving Credit Facility), exchange all Existing Tranche B-2 Term Loans for New Tranche B-2 Term Loans (lenders and holders of Existing Tranche B-2 Term Loans electing to participate in such exchange, the “Participating Tranche B-2 Term Loan Lenders”); •With respect to each holder of Existing Tranche B-3 Term Loans, provide such holder the opportunity to fund its pro rata share of the Tranche B-2 Shortfall Amount, provided that members of the Ad Hoc Group that have not elected to become Backstop Parties shall not have the opportunity to participate in such offer; and •Exchange (i) (A) $200 million of Existing Tranche B-3 Term Loans held by Funding B-3 Term Loan Lenders and Backstop Parties for (B) an equal amount of New Tranche B-2 Term Loans, allocated based on such lenders’ percentage of the Tranche B-2 Shortfall Amount to be funded (including by means of assignment from the Funding Commitment Party or cashless exchange of Existing Tranche B-2 Term Loans as provided herein) by such Funding B-3 Term Loan Lender and/or Backstop Party and (ii) all of the remaining Existing Tranche B-3 Term Loans for New Tranche B-3 Term Loans (the lenders and holders described in clause (i) and (ii) above, the “Participating Tranche B-3 Term Loan Lenders”). Each such transaction described above shall be upon the terms and subject to the conditions set forth in the TSA and related exhibits and in the Definitive Documentation. | ||||
| Transactions | Subject to the terms and conditions of the TSA, the Company will consummate the following transactions in the order set forth below (the “Transactions”): 1.The Existing Credit Agreement will be amended as set forth in the Summary of Consent Solicitations to, inter alia, remove certain affirmative covenants, negative covenants and events of default. 2.Certain of the Company’s subsidiaries (such subsidiaries, the “A/R Originators”) will enter into a sale and contribution agreement with the Securitization Vehicle pursuant to which, among other things, the A/R Originators will sell (and, in the case of the parent entity of the Securitization Vehicle, contribute) receivables that will serve as collateral for the A/R Securitization Facility to the Securitization Vehicle and the Securitization Vehicle will use the proceeds of the A/R Securitization Facility to pay the purchase price for such sold receivables (the “A/R Purchase Price”). 3.The A/R Originators will transfer the proceeds of the A/R Purchase Price to the Borrower. 4.The Borrower and the Participating Tranche B-2 Term Loan Lenders, the Participating Tranche B-3 Term Loan Lenders, the New Revolving Lenders and Non-Extending Revolving Lenders will enter into the New Credit Agreement. | ||||
5. Concurrently with the repayment of Existing Tranche B-2 Term Loans in clause 6, the Borrower will incur $336,213,312.50 of New Tranche B-2 Term Loans to refinance Existing Tranche B-2 Term Loans as follows: •The Funding Commitment Party and Funding B-3 Term Loan Lenders that are not party to the Commitment and Participation Letter (the “Non-Backstop Funding B-3 Lenders”) (or a fronting lender on behalf of such Funding B-3 Term Loan Lenders) will fund in cash New Tranche B-2 Term Loans in an amount equal to the outstanding balance of Existing Tranche B-2 Term Loans that are not being (a) paid in cash pursuant to clause 6, (b) exchanged on a cashless basis for New Tranche B-2 Term Loans by Participating Tranche B-2 Term Loan Lenders pursuant to the commitments made in Section 5(g) of the Transaction Support Agreement and (c) exchanged on a cashless basis by Backstop Parties into New Tranche B-2 Term Loans to satisfy their allocated portion of the Backstop Funding Amount as set forth in the final sentence of this paragraph; provided that any amount not funded by the Non-Backstop Funding B-3 Term Loan Lenders shall be initially funded by the Funding Commitment Party and ultimately funded by the Backstop Parties as part of the Backstop Funding Amount. The Borrower will use the cash proceeds of such New Tranche B-2 Term Loans to repay in cash the Existing Tranche B-2 Term Loans not being exchanged by lenders and holders of Existing Tranche B-2 Term Loans. Each Funding B-3 Term Loan Lender that is not a Backstop Party will be allocated its pro rata share (based on the share of all Existing Tranche B-3 Term Loans) of the Tranche B-2 Shortfall Amount. Prior to the Closing Date, the advisors to the Ad Hoc Group will allocate the Backstop Funding Amount among the Backstop Parties. Any Backstop Party that holds Existing Tranche B-2 Term Loans that such Backstop Party has not committed to extend pursuant Section 5(g) of the Transaction Support Agreement may elect to satisfy some or all of its allocated portion of the Backstop Funding Amount by exchanging Existing Tranche B-2 Term Loans for New Tranche B-2 Term Loans on a cashless basis. •The Borrower will exchange on a cashless basis the Existing Tranche B-2 Loans (a) that Participating Tranche B-2 Term Loan Lenders have committed to exchange for New Tranche B-2 Term Loans via cashless settlement pursuant to Section 5(g) of the Transaction Support Agreement; and (b) that Backstop Parties elect to exchange for New Tranche B-2 Term Loans to satisfy their allocated portion of the Backstop Funding Amount. | |||||
6. Concurrently with clause 5, the Borrower will use $385 million of the A/R Purchase Price and/or cash on hand and/or proceeds of the New Revolving Credit Facility to repay in cash Existing Tranche B-2 Term Loans that are not being exchanged for New Tranche B-2 Term Loans. 7. The Borrower will pay (a) to all holders of New Tranche B-2 Term Loans, their pro rata share of the Commitment Premium; and (b) in cash to members of the Steerco (i) 0.10% of the amount of Existing Tranche B-3 Term Loans of such Steerco Member as of the Effective Date of the Transaction Support Agreement; (ii) 0.10% of the amount of Existing Tranche B-2 Term Loans held by such Steerco member as of the Effective Date of the Transaction Support Agreement that are exchanged by such Steerco Member for New Tranche B-2 Term Loans; and (iii) 0.10% of the New Money Tranche B-2 Term Loans to be assigned to such Steerco Member by the Funding Commitment Party pursuant to the Backstop Commitment Letter as in effect on the Effective Date of the Transaction Support Agreement. | |||||
8. Concurrently with the refinancing of Existing Tranche B-2 Term Loans described in clause 6, the Borrower will incur (i) additional New Tranche B-2 Term Loans to refinance $200 million of the Existing Tranche B-3 Term Loans held by Funding B-3 Term Loan Lenders via cashless settlement (the “New Money Tranche B-2 Term Loans”); and (ii) an amount of New Tranche B-3 Term Loans equal to the remaining outstanding balance of Existing Tranche B-3 Term Loans held by Participating Tranche B-3 Term Loan Lenders and refinance such Existing Tranche B-3 Term Loans with New Tranche B-3 Term Loans via cashless settlement. 9. Concurrently with the refinancing of Existing Term Loans described in clauses 6 and 7, (i) the commitments of the New Revolving Lenders under the Existing Revolving Credit Facility will be cancelled and any Existing Revolving Loans and Existing Revolving Commitments provided by New Revolving Lenders will be refinanced with New Revolving Credit Loans and New Revolving Commitments and (ii) the commitments of the Non-Extending Revolving Lenders under the Existing Revolving Credit Facility will be cancelled and any Existing Revolving Loans and Existing Revolving Commitments provided by Non-Extending Revolving Lenders will be refinanced under the Non-Extended Revolving Credit Facility; provided that, for the avoidance of doubt, the commitments of the New Revolving Lenders under the Existing Revolving Credit Facility in excess of the New Revolving Commitments of any New Revolving Lender shall be canceled. | |||||
10. Concurrently with their entering into the New Credit Agreement, (i) the Borrower will designate the New Credit Agreement as the “Credit Agreement” under the Existing Intercreditor Agreement, pursuant to the definition of “Credit Agreement” in the Existing Intercreditor Agreement, (ii) the Borrower will designate the Amended Credit Agreement as “Additional First Lien Obligations” under the Existing Intercreditor Agreement, pursuant to Article IX of the Existing Intercreditor Agreement and (iii) the Participating Tranche B-2 Term Loan Lenders, the Participating Tranche B-3 Term Loan Lenders, the New Revolving Lenders and the Non-Extending Revolving Lenders will instruct the New Credit Agreement Agent to sign a joinder to the Existing Intercreditor Agreement as an “Additional Collateral Agent” thereunder. To the extent the parties agree that it is required to implement the Transactions, the parties will enter into an amendment to the Existing Intercreditor Agreement. | |||||
| Tax Treatment | Subject to the terms and conditions of the TSA, the Consenting Holders and the Company Group will cooperate in good faith to structure the Transactions in a mutually acceptable tax efficient manner, including with respect to income tax and withholding tax consequences of the Transactions to the Consenting Holders and the Company, as determined in good faith by the Required Consenting Holders and the Company Group. | ||||
| Borrower | The E.W. Scripps Company, an Ohio corporation (the “Borrower”). | |||||||
| New Term Loan Lenders | New Tranche B-2 Term Loan Lenders and New Tranche B-3 Term Loan Lenders (each, as defined below) (collectively, the “New Term Loan Lenders”). | |||||||
| Administrative Agent | JPMorgan Chase Bank, N.A. (“JPMorgan” and, in such capacity, the “Administrative Agent”). | |||||||
| Documentation Principles | The definitive documentation for the New Tranche B-2 Term Loan Facility and the New Tranche B-3 Term Loan Facility (each as defined below) will (a) be initially prepared by counsel to the Borrower, (b) include the New Revolving Credit Facility and the Non-Extended Revolving Credit Facility and (c) shall be based upon the Existing Credit Agreement and the related associated documents with modifications solely to reflect the terms set forth herein, including the changes set forth on Annex II (the “Agreed Modifications”). | |||||||
| New Term Loan Facilities | In connection with the Credit Agreement Exchange Offer & Amendment, the Borrower will establish: (i) a new tranche B-2 term loan facility under the New Credit Agreement (the “New Tranche B-2 Term Loan Facility”; the loans hereunder, the “New Tranche B-2 Term Loans”) in an aggregate principal amount not to exceed $547,156,441.32, which shall be provided by the Participating New Tranche B-2 Term Loan Lenders and the Funding B-3 Term Loan Lenders (collectively, the “New Tranche B-2 Term Loan Lenders”) on the terms set forth in Exhibit A to the Transaction Support Agreement; and (ii) a new tranche B-3 term loan facility under the New Credit Agreement (the “New Tranche B-3 Term Loan Facility” and, together with the New Tranche B-2 Term Loan Facility, the “New Term Loan Facilities” and each, a “New Term Loan Facility”; the loans hereunder, the “New Tranche B-3 Term Loans” and together with the New Tranche B-2 Term Loans, the “New Term Loans”) in an aggregate principal amount equal to the aggregate principal amount of Existing Tranche B-3 Term Loans that are exchanged by Participating Tranche B-3 Term Loan Lenders (or repaid through cashless roll) (the “New Tranche B-3 Term Loan Lenders”) into New Tranche B-3 Term Loans. | |||||||
| Use of Proceeds | New Tranche B-2 Term Loan Facility. The proceeds of the New Tranche B-2 Term Loan Facility will be used, together with $385,000,000 from (i) certain borrowings under the A/R Securitization Facility, (ii) cash on hand at the Borrower and (iii) the proceeds of the New Revolving Credit Facility, to: a)repay (including, as applicable, via exchange or cashless roll) all Existing Tranche B-2 Term Loans outstanding under the Existing Credit Agreement, together with accrued and unpaid interest on the Closing Date; b)repay (including, as applicable, via exchange or cashless roll) Existing Tranche B-3 Term Loans in an aggregate principal amount of $200,000,000 outstanding under the Existing Credit Agreement, together with accrued and unpaid interest on the Closing Date; and c)pay fees and expenses in connection therewith. New Tranche B-3 Term Loan Facility. The New Tranche B-3 Term Loan Facility will be issued in exchange for all of the Existing Tranche B-3 Term Loans held by Participating Tranche B-3 Term Loan Lenders outstanding under the Existing Credit Agreement (other than the Existing Tranche B-3 Term Loans of Funding B-3 Term Loan Lenders that are exchanged for New Tranche B-2 Term Loans as set forth in Exhibit A), and the Borrower shall pay, in cash, accrued and unpaid interest on the Existing Tranche B-3 Term Loans so exchanged out of cash on hand on the Closing Date. For the avoidance of doubt, after giving effect to the New Term Loan Facilities, there shall be no Existing Tranche B-2 Term Loans outstanding under the Amended Credit Agreement. | |||||||
| Closing Date | The date on which the New Credit Agreement providing for the New Term Loan Facilities, New Revolving Credit Facility and, if applicable, the Non-Extending Revolving Credit Facility becomes effective is referred to herein as the “Closing Date.” | |||||||
| Availability | New Tranche B-2 Term Loan Facility. The New Tranche B-2 Term Loan Facility shall be available in a single drawing on the Closing Date and may not be-reborrowed. New Tranche B-3 Term Loan Facility. The New Tranche B-3 Term Loan Facility shall be available in a single drawing on the Closing Date and may not be-reborrowed. | |||||||
| Incremental Facilities | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
Refinancing Facilities | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Interest Rates, Premiums and Fees | As set forth on Annex I hereto. | |||||||
| Default Rate | With respect to overdue principal, the applicable interest rate plus 2.00% per annum, and with respect to any other overdue amount (including overdue interest), the interest rate applicable to Base Rate loans (as defined in Annex I hereto) plus 2.00% per annum and in each case, shall be payable on demand. | |||||||
| Final Maturity | New Tranche B-2 Term Loan Facility. June 30, 2028; subject to a springing maturity date that is 91 days earlier than the stated final maturity with respect to the Borrower’s 5.875% senior notes due July 15, 2027 (the “2027 Unsecured Notes”), only to the extent that more than $50,000,000 in aggregate principal amount thereof (including any refinancing that matures less than 91 days after the then latest maturity date of the New Tranche B-2 Term Loan Facility) remains outstanding on the applicable reference date (the “New Tranche B-2 Maturity Date”). New Tranche B-3 Term Loan Facility. November 30, 2029; subject to a springing maturity date that is 91 days earlier than the stated final maturity with respect to the Borrower’s (i) 2027 Unsecured Notes and (ii) 3.875% senior secured notes due January 15, 2029 (the “2029 Secured Notes”), only to the extent that, in either case, more than $50,000,000 in aggregate principal amount of 2027 Unsecured Notes or 2029 Secured Notes, as applicable (including any refinancing that matures less than 91 days after the then latest maturity date of the New Tranche B-3 Term Loan Facility) remains outstanding on the applicable reference date (the “New Tranche B-3 Maturity Date”). | |||||||
| Amortization | New Tranche B-2 Term Loan Facility. The New Tranche B-2 Term Loan Facility will amortize in equal quarterly installments in an aggregate annual amount of 1.00% of the original principal amount of the New Tranche B-2 Term Loan Facility, with the remainder due on the New Tranche B-2 Maturity Date. New Tranche B-3 Term Loan Facility. The New Tranche B-3 Term Loan Facility will amortize in equal quarterly installments in an aggregate annual amount of 1.00% of the original principal amount of the New Tranche B-3 Term Loan Facility, with the remainder due on the New Tranche B-3 Maturity Date. | |||||||
| Guarantees | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Security | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications); provided that the Collateral shall exclude (i) equity interests in any Securitization Subsidiary and (ii) Receivables Assets and Securitization Assets sold or contributed to a Securitization Subsidiary in connection with any Qualified Securitization Financing or Receivables Facility, as the case may be; provided further that any accounts receivable or related assets that are not subject to any Qualified Securitization Financing or Receivables Facility shall remain “Collateral”. | |||||||
“Receivables Assets” shall mean (a) any accounts receivable generated in the ordinary course of business owed to the Borrower or a Subsidiary (as defined in the Existing Credit Agreement, subject to the Agreed Modifications) and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by the Borrower to a commercial bank or an affiliate thereof in connection with a Receivables Facility. | ||||||||
“Receivables Facility” shall mean an arrangement between the Borrower or a Subsidiary and a commercial bank or an Affiliate thereof pursuant to which (a) the Borrower or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank (or such Affiliate) accounts receivable owing by customers, together with Receivables Assets related thereto, at a maximum discount, for each such account receivable, not to exceed 5.0% of the face value thereof, (b) the obligations of the Borrower or such Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations) to the Borrower and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements. The aggregate amount of commitments outstanding at any one time under all Receivables Facilities and Securitization Facilities shall not exceed $450,000,000 in the aggregate and in no event shall any borrowing thereunder exceed the lesser of $450,000,000 and the borrowing base under such facility. | ||||||||
“Securitization Assets” shall mean any accounts receivable generated in the ordinary course of business and related assets customary for inclusion in receivables/securitization transactions, in each case subject to a Securitization Facility. | ||||||||
“Securitization Facility” shall mean any of one or more securitization financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of its Restricted Subsidiaries sells its Securitization Assets to either (a) a person that is not a Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells, or grants a security interest in, Securitization Assets to another Securitization Subsidiary or a person that is not a Restricted Subsidiary. The aggregate amount of commitments outstanding at any one time under all Receivables Facilities and Securitization Facilities shall not exceed $450,000,000 in the aggregate and in no event shall any borrowing thereunder exceed the lesser of $450,000,000 and the borrowing base under such facility. | ||||||||
“Securitization Repurchase Obligation” shall mean any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. | ||||||||
“Securitization Subsidiary” shall mean any subsidiary in each case formed for the purpose of and that solely engages in one or more Qualified Securitization Financings and other activities reasonably related thereto. | ||||||||
“Standard Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a securitization financing, including those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. | ||||||||
“Qualified Securitization Financing” shall mean any Securitization Facility of a Securitization Subsidiary that meets the following conditions: (i) the board of directors or any authorized committee of such board of directors of the Borrower shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries, (ii) all sales of the Securitization Assets and related assets by the Borrower or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made at fair market value (as determined in good faith by the Borrower) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries (other than a Securitization Subsidiary) to secured indebtedness under the credit agreements prior to engaging any securitization financing shall not be deemed a Qualified Securitization Financing. | ||||||||
| Mandatory Prepayments | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Voluntary Prepayments | Substantially the same as under the Existing Credit Agreement; provided that the Borrower shall pay a “prepayment premium” in connection with any prepayment or repayment (including in connection with any refinancing, replacement, discharge, defeasance or similar transaction, or acceleration of the Term Loans on the exercise of remedies but, for the avoidance of doubt, excluding any mandatory prepayments) in an amount (expressed as a percentage of the outstanding principal amount of the New Tranche B-2 Term Loan Facility or New Tranche B-3 Term Loan Facility, as the case may be) as set forth opposite the relevant period from the Closing Date: (i) with respect to all or any portion of the New Tranche B-2 Term Loan Facility: | |||||||
| Year | Prepayment Premium | |||||||
| Year 1: | 2.00% | |||||||
| Year 2: | 1.00% | |||||||
| Thereafter: | No premium | |||||||
| (ii) with respect to all or any portion of the New Tranche B-3 Term Loan Facility: | ||||||||
| Year | Prepayment Premium | |||||||
| Year 1: | 1.00% | |||||||
| Thereafter: | No premium | |||||||
| Conditions Precedent to Effectiveness of the New Term Loan Facilities and Closing Date Borrowings | Subject only to the conditions in the TSA and the conditions set forth on Annex III. | |||||||
| Representations and Warranties | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Affirmative Covenants | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Negative Covenants | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Financial Covenant | For the avoidance of doubt, neither of the New Term Loan Facilities shall have the benefit of, or any rights with respect to, the Financial Covenant (as modified to reflect the Agreed Modifications). | |||||||
| Financial Definitions | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Events of Default | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Unrestricted Subsidiaries | None. | |||||||
| Voting | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Cost and Yield Protection | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Assignments and Participations | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Expenses and Indemnification | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | |||||||
| Governing Law and Forum | New York. | |||||||
| Counsel to Consenting Holders | Davis Polk & Wardell LLP. | |||||||
| Interest Rates | The interest rate for the New Tranche B-2 Term Loan Facility will be at the option of the Borrower, initially, Adjusted Term SOFR (as defined in the Existing Credit Agreement) plus 5.75% or Base Rate (as defined in the Existing Credit Agreement) plus 4.75%. The interest rate for the New Tranche B-3 Term Loan Facility will be at the option of the Borrower, initially, Adjusted Term SOFR plus 3.35% or Base Rate plus 2.35%. | ||||
The Borrower may elect interest periods of 1, 3 or 6 months for Term SOFR (as defined in the Existing Credit Agreement) borrowings. | |||||
Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be), in the case of Base Rate loans and interest shall be payable at the end of each interest period and, in any event, at least every three months. Adjusted Term SOFR floor shall be 1.00%. Base Rate floor shall be 2.00% | |||||
| Commitment Premium | 2.00% of the aggregate principal amount of the New Tranche B-2 Term Loans payable on a pro rata basis to all of the New Tranche B-2 Term Loan Lenders (the “Commitment Premium”). | ||||
| Reference | Existing Scripps Credit Agreement | New Credit Agreement | |||||||||
| Indebtedness | |||||||||||
1. | “Indebtedness” (§1.1) | Various | Indebtedness deemed to also include outstanding amounts under any receivables, factoring or similar facilities or securitizations whether or not the same would constitute indebtedness or a liability on the balance sheet of such Person according to GAAP. | ||||||||
2. | Incremental Debt (§2.24(c)) Ratio Debt (§7.1(k)) | Freebie basket: $360 million Ratio basket: (i) Pari passu indebtedness permitted provided that First Lien Net Leverage Ratio is less than or equal to 4.00 to 1.00 on a pro forma basis (ii) Junior secured indebtedness permitted provided that Senior Secured Net Leverage Ratio is less than or equal to 5.50 to 1.00 (iii) Unsecured Indebtedness permitted provided that Total Net Leverage Ratio is less than or equal to 6.00 to 1.00 | Freebie basket: $50 million, subject to the following additional conditions: •Cannot be used to repay Junior Debt •Proceeds must be new money Debt incurred pursuant to freebie basket or the ratio basket all subject to the following additional conditions: •must be pari or junior in right of payment (and not senior). •terms and conditions (including obligors, collateral, affirmative and negative covenants and events of default but excluding interest margin and other economic terms) must not be more favorable to the lenders providing such debt than those applicable to the B2 and B3 Term Loans. •no earlier maturity date and no shorter WAL; junior debt must not have any amortization prior to the latest maturity date with respect to all Term Loans. | ||||||||
•cannot be provided by Affiliates. •pari passu secured debt (in any form) subject to pricing MFN, including with respect to call protection. •must be subject to an agreed first lien intercreditor agreement. •shall not be guaranteed by any non-Loan Party. •shall not be secured by non-Collateral assets. •shall not be incurred with the purpose to influence voting or effectuate an exit consent. •voluntary or mandatory prepayment of pari secured debt must be pro rata or less than pro rata with the Term Loans in the case of pari passu secured debt. Junior debt shall not require mandatory prepayments prior to the payment in full of the obligations in respect of the Term Loans in cash. •No Event of Default or Default. Ratio basket: (i) Pari passu indebtedness permitted provided that First Lien Gross Leverage Ratio is less than or equal to 2.00 to 1.00 on a pro forma basis (ii) Junior secured indebtedness permitted provided that Senior Secured Net Leverage Ratio is less than or equal to 4.50 to 1.00 (iii) Unsecured Indebtedness permitted provided that Total Net Leverage Ratio is less than or equal to 5.00 to 1.00 Revolver Class Vote to amend or waive. 2 | |||||||||||
3. | Capital Lease (§7.1(c)) | Greater of $55 million or 15% of Consolidated EBITDA | $55 million •existing $30 million cap leases with respect to the Denver facility to be grandfathered in pursuant to a schedule. •cannot be made in bulk as part of a committed facility, and must be for bona fide business purposes.3 | ||||||||
4. | Intercompany Indebtedness (§7.1(d)) | Unlimited among restricted group as long as permitted by the corresponding investment covenants. Indebtedness provided by Loan Party to non-Loan Party shall be subordinated in a manner reasonably acceptable to the Administrative Agent. | All debt of non-Loan Party to Loan Party shall be deemed an Investment and utilize capacity under §7.4(k). All intercompany Indebtedness owing from a Loan Party to a non-Loan Party must be subordinated in right of payment and unsecured. In addition, no Indebtedness incurred by any Subsidiary that is not a Loan Party, the proceeds of which are or are contemplated to be lent by such Subsidiary to any Loan Party may be Guaranteed by any Loan Party nor shall any Loan Party provide any other credit support in respect of such Indebtedness (the “Double-Dip Protection”). For the avoidance of doubt, Double-Dip Protection is to apply to all intercompany Indebtedness owing from the Borrower or a Loan Party to a non-Loan Party regardless of whether or not incurred under §7.1(d). Revolver Class Vote to amend or waive Double-Dip Protection (including those provisions covered by the prior sentence). Subordination of intercompany debt will be pursuant to terms of an intercompany subordination agreement satisfactory to the AHG. | ||||||||
5. | Non-Loan Party Cap (Permitted Acquisition Debt (§7.1(f)) / Ratio Debt (§7.1(k)) | Sub-cap on non-loan party of the greater of $55 million and 15% of Consolidated EBITDA (shared with non-loan party debt basket). | Eliminate Non-Loan Party ratio/acquisition debt concept. Revolver Class Vote required to restore any NLP capacity. | ||||||||
6. | Incurred / Assumed Acquisition Debt (§7.1(f)) | Uncapped Indebtedness incurred or assumed in connection with a Permitted Acquisition, as long as: •if pari passu, subject to pro forma First Lien Net Leverage Ratio at 4.0x, and MFN Protection if incurred in contemplation of the transaction, subject to First Lien Intercreditor Agreement; •if junior, subject to pro forma Senior Secured Net Leverage Ratio at 5.5x, subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent; •if unsecured, subject to pro forma Total Net Leverage Ratio at 6.0x; •if incurred by a non-Loan Party, subject to Non-Loan Party Cap. In each case, subject to: •no Event of Default; •no shorter Weighted Average Life to Maturity; •do not mature prior to the date that occurs 91 days following the Latest Maturity Date of any class of Term Loans; •no more restrictive or onerous terms; •delivery of a Responsible Officer’s certificate 5 Business Days ahead of incurrence of such indebtedness; •other than the Indebtedness incurred by non-Loan Party, shall not be guaranteed by any person other than the Guarantor; •shall not be secured by non-Collateral. | Uncapped Indebtedness incurred in connection with a Permitted Acquisition subject to the same ratios as Ratio Debt and such acquisition being for a bona fide business purpose. Incurred Indebtedness to be subject to restrictions set forth under “Incremental Debt” including the MFN Protections. Assumed Indebtedness capped at $55 million and must be non-recourse to the Collateral and not incurred in contemplated of the transaction but is not subject to restrictions set forth under “Incremental Debt” or the MFN Protections. Revolver Class Vote to amend or waive. | ||||||||
| 7. | Intercompany Guarantees (§7.1(g)) | Guarantees by Loan Party of non-Loan Party Indebtedness shall be subject to the corresponding investment covenants. | All intercompany guarantees shall be deemed to be an Investment and utilize capacity under §7.4(k). Revolver Class Vote to amend or waive | ||||||||
| 8. | General Debt (§7.1(l)) | Greater of $45 million or 12.5% of Consolidated EBITDA. | $45 million, subject to the following conditions: a.If incurred by a Loan Party, must be unsecured or if secured, secured by the Collateral and on a junior lien basis. b.Must be incurred for a bona fide business purpose and not for any other purpose. c.Cannot be provided by an Affiliate. d.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a)-(c). | ||||||||
| 9. | JV Debt Basket (§7.1(n)) | Greater of $25 million and 7.5% of Consolidated EBITDA. | $15 million. a.Must be a joint venture formed for a bona fide business purpose with a non-affiliate. Revolver Class Vote to amend or waive this element. b.No Event of Default or Default. | ||||||||
| 10. | Non-Loan Party Debt Basket (§7.1(o)) | Greater of $55 million and 15% of Consolidated EBITDA (shared with non-loan party sub-cap on acquisition ratio debt and general ratio debt) | $5 million a.Must be incurred for a bona fide business purpose and not for any other purpose. b.Cannot be provided by an Affiliate. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 11. | Contribution Debt, “Excluded Contributions” (§7.1(p), §1.1) | Not to exceed the 100% of the net cash proceeds from the issuance or sale of Qualified Equity Interest of the Borrower. | Eliminate concept and remove basket. | ||||||||
| 12. | Refinancing Term Loans, Replacement Revolving Facilities, Refinancing Notes (§7.1(s), 2.24(e), 2.24(g)) | Refinancing Term Loans: Borrower may establish one or more additional tranches of term loans under this Agreement to refinance in whole or in part any class of Term Loans, as long as: •conditions Precedents in §3.2 are satisfied; •no earlier maturity than the Term Loans being refinanced; •no shorter Weighted Average Life to Maturity than the Term Loans being refinanced; •principal amount not to exceed the outstanding amount of the Term Loans being refinanced plus fees, premiums, costs and expenses (including OID) and accrued interest); •terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than those applicable to the Term Loans being refinanced; •if pari passu, such refinancing indebtedness shall be subject to the First Lien Intercreditor Agreement; if junior, subject to a customary intercreditor agreement; and •shall not be guaranteed by non-Loan Party. Replacement Revolving Facilities and Refinancing Notes have similar conditions. | Refinancing debt to include the following modifications: a.can only be incurred as debt pari passu or junior in payment priority. b.cannot provide for greater than pro rata voluntary and mandatory prepayments. c.cannot be incurred to influence voting thresholds and exit consents shall be prohibited. d.shall not be secured by non-Collateral. e.proceeds must be new money and applied pro rata to all Lenders. f.subject to pricing MFN, including with respect to call protection. Refinancing notes must be subject to the same conditions listed above. Revolver Class Vote to amend or waive. | ||||||||
| 13. | Receivables/Securitization Facility | N/A | The terms governing the New Term Loans shall permit a Qualified Securitization Financing and Receivables Facility in an aggregate amount at any time up to $450 million. The Existing Credit Agreement shall be modified to permit such facilities, including by modifying the definition of “Permitted Investments”, the definition of “Permitted Liens”, the Indebtedness covenant (§7.1), the Restricted Payments covenant (§7.5), the Sale of Assets covenant (§7.6) and the Transactions with Affiliates covenant (§7.7) to permit transactions in connection with a Qualified Securitization Financing or a Receivables Facility. Commitments cannot exceed $450 million. Borrowings cannot exceed the greater of $450 million and the borrowing base. “Securitization Assets” cannot include real estate assets, mortgage receivables or related assets. Receivables and securitizations shall be limited solely to bona fide accounts receivables generated in the ordinary course of business and related assets customary for inclusion in receivables/securitization transactions. Any such facility shall have a right of first offer for any refinancing/replacement of such facility in whole, not in part; permitted refinancings (or any amendments) will prohibit make-wholes or call premiums in excess of 102. For the avoidance of doubt, this sentence is only binding upon the Borrower and not any lender under a Qualified Securitization Financing/Receivables Facility (and will not restrict such lender’s ability to assign). Revolver Class Vote to amend or waive. | ||||||||
| 14. | Revolver | Revolving credit facility to be subject to buyout option in favor of Term Loan Lenders exercisable at any time that will require purchase at par in cash of all, and not less than all, funded revolving loans and assumption of all unfunded commitments, accrued and unpaid interest and accrued and unpaid fees (including letter of credit participation fees), plus cash collateralizing all outstanding letters of credit. | |||||||||
| Liens | |||||||||||
| 15. | Leases and licenses (“Permitted Liens” (m)) | Leases, subleases, licenses or sublicenses on the property covered thereby, in each case, in the ordinary course of business which do not (i) materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole or (ii) secure any Indebtedness. | All carve-outs for licenses and sub-licenses must be for non-exclusive licenses and sub-licenses throughout the agreement. | ||||||||
| 16. | Non-Loan Party Liens (“Permitted Liens” (i)(i)) | Liens securing debt incurred by non-Loan Party as long as permitted by debt covenants. | To be permitted so long as secured solely by assets of a non-Loan Party, but can only be utilized in connection with debt incurred pursuant to §7.1(o) and §7.1(n). Revolver Class Vote to amend non-Loan Party assets limitations. | ||||||||
| 17. | Lien on Unrestricted Subsidiary (“Permitted Liens” (p)) | Lien on assets or equity interests of Unrestricted Subsidiary that secures non-recourse debt of Unrestricted Subsidiary. | Remove basket. | ||||||||
| 18. | General Liens (§7.2(f)) | Greater of $45 million or 12.5% of Consolidated EBITDA. | $45 million. If secured on Collateral, must be junior in priority. Revolver Class Vote to amend junior priority requirement. | ||||||||
| Investments | |||||||||||
| 19. | Investment permitted by Disposition covenant (§7.4(d)) | Uncapped Investments constituting non-cash proceeds as long as permitted by §7.6. | Limited to transactions with an unaffiliated third party for bona fide business purposes. Revolver Class Vote to amend or waive. | ||||||||
| 20. | General Investments (§7.4(e)) | Greater of $120 million or 33% of Consolidated EBITDA, subject to no Event of Default. | $40 million. a.Must be for a bona fide business purpose. b.Cannot be used for investments in non-Loan Parties other than for JVs for bona fide business purposes. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b) above. | ||||||||
| 21. | Ratio Investments Basket (§7.4(f)) | Cannot exceed 4.00x Total Net Leverage Ratio, subject to no Default or EoD and delivery of compliance certificate. | 3.25x Total Net Leverage Ratio a.Must be for a bona fide business purpose. b.Cannot be used for investments in non-Loan Parties other than for JVs for bona fide business purposes. c.No Event of Default or Default. d.Compliance certificate Revolver Class Vote to amend or waive clauses (a) and (b) above. | ||||||||
| 22. | Loans and Advances to Employees and D&Os (§7.4(g)(i)) | $15 million | $5 million | ||||||||
| 23. | Available Amount Basket (§7.4(i)) | Up to the Available Amount so long as the Available Amount Conditions are satisfied (no EoD and Total Net Leverage Ratio does not exceed 5.0x). Available Amount can be used for Investment and Restricted Payments (which includes Restricted Debt Payments), in an amount equal to the sum of: •$135 million plus •the Cumulative Retained Excess Cash Flow Amount plus •returns in cash on Investments made utilizing the Available Amount plus •FMV of Investments in Unrestricted Subs that are redesignated Restricted Subs plus •the amount of all Net Proceeds From Equity Issuance plus •Retained Declines Proceeds plus •$195 million minus •any usage of the Available Amount baskets for Investments or RPs | Starter basket for RPs consisting of preferred dividends of $75 million, subject to a 4.25x TNLR. RPs consisting of preferred dividends using Available Amount will be permitted starting in FY 2027 if (1) less than $50mm of 2027 SUNs remain outstanding and (2) ECF YTD pro forma for pref dividend is positive. Starter basket for all other purposes of $0. •If incurred for other RPs, subject to 3.0x TNLR. •If incurred for Investments, subject to 3.75x TNLR. Retained ECF in all cases resets to $0. Revolver Class Vote to amend or waive. | ||||||||
| 24. | Investments in Restricted Subs that are Non-Loan Parties (§7.4(k)) | Greater of $25 million and 7.5% of Consolidated EBITDA. | $5 million a.Must be for a bona fide business purpose. b.No Event of Default or Default. Revolver Class Vote to amend or waive clause (a). | ||||||||
| 25. | Investments in JVs (§7.4(m)) | Greater of $25 million and 7.5% of Consolidated EBITDA | $25 million. a.Must be for a bona fide business purpose. b.Must be a bona fide joint venture formed for a bona fide business purpose with an unaffiliated third party. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 26. | Investments in Unrestricted Subs (§7.4(n)) | Greater of $25 million and 7.5% of Consolidated EBITDA | Remove basket. Revolver Class Vote to reinstate. | ||||||||
| 27. | Others (§7.4) | N/A | Investments to expressly include any capital contribution. Investment capacity shall not be “replenished” above the original cost of such investment and in any event (i) no netting for returns if made in contemplation of such return or (ii) the return on the investment occurs substantially concurrently with the investment. Revolver Class Vote to amend or waive. | ||||||||
| Fundamental Changes and Permitted Acquisition | |||||||||||
| 28. | Fundamental Changes (§7.3(a)) | Restricted Subsidiary may merge with and into an Unrestricted Subsidiary. Restricted Subsidiary may liquidate or dissolve if determined in good faith is in in the best interest of the Borrower. | Remove. In the event of a liquidation or dissolution of a Loan Party, the assets of such Loan Party must be transferred to another Loan Party. Revolver Class Vote to amend requirement that Loan Party assets be transferred to another Loan Party. | ||||||||
| 29. | Permitted Acquisition (§7.3(b)) | Uncapped if the following conditions are satisfied: •Assets/business acquired shall be in similar, related, ancillary or complementary business or lines of business with the Restricted Group; •Borrower is able to incur at least $1 of additional debt under the ratio debt carveout after giving effect to such acquisition; •acquired Equity Interests shall be pledged; •acquisition consummated on a non-hostile basis and approved by the target’s board; •business and assets acquired shall be free and clear of all Liens; •10 Business Days’ prior written notice to Administrative Agent if acquisition consideration exceeds $100 million; •No Default or Event of Default. | Same, except: a.Any acquisition of a Person or assets must become a Loan Party or be pledged as Collateral. b.Total Net Leverage Ratio, pro forma, shall be no worse than such ratio prior to the consummation of the acquisition. Revolver Class Vote to amend or waive clause (a). | ||||||||
| Restricted Payments | |||||||||||
| 30. | Intercompany Restricted Payments (§7.5(a)) | Uncapped payment of cash or dividends from Restricted Group to Loan Parties. | To expressly provide that no Restricted Payments by a Loan Party to a non-Loan Party is permitted. Revolver Class Vote to amend or waive express prohibition on RPs from Loan Party to non-Loan Party. | ||||||||
| 31. | General RP Basket (§7.5(b)(2)(i)) | Greater of $95 million and 25% of Consolidated EBITDA | $10 million. Cannot be used to repay Junior Debt at any time. Cannot be used for payments in respect of preferred equity. Revolver Class Vote to amend or waive. | ||||||||
| 32. | General RP Ratio Basket (§7.5(b)(2)(ii)) | Cannot exceed 3.25x Total Net Leverage Ratio, subject to no EoD and delivery of compliance certificate | Cannot exceed 2.50x Total Net Leverage Ratio, subject to no EoD and delivery of compliance certificate. Revolver Class Vote to amend or waive. | ||||||||
| 33. | Available Amount Basket (§7.5(d)) | Up to the Available Amount so long as the Available Amount Conditions are satisfied (no EoD and Total Net Leverage Ratio does not exceed 5.0x) | See #22 above. | ||||||||
| 34. | Dividends on Borrower’s common stock (§7.5(e)) | Cannot exceed $50 million in any fiscal year and unused amounts may be carried forward to subsequent fiscal years in an aggregate amount not to exceed 25% of the permitted cumulative amount | $5 million per fiscal year (with carry-forward permitted). | ||||||||
| 35. | Cumulative Retained Excess Cash Flow Amount | An amount determined on a cumulative basis equal to the aggregate sum of the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods | See Excess Cash Flow sweep below. | ||||||||
| 36. | Refinance of the 2027 Unsecured Notes and 2031 Unsecured Notes | N/A | 2027 Unsecured Notes and 2031 Unsecured Notes can be refinanced or repurchased by the proceeds from debt incurred pursuant to the Ratio Debt basket as described above through the maturity of the 2027 Unsecured Notes. Revolver Class Vote to amend or waive. | ||||||||
| 37. | Restrictions on payment in respect of the 2027 Unsecured Notes | N/A | Principal payments in respect of the 2027 Unsecured Notes shall not be permitted to be made with proceeds from the A/R Securitization Facility or borrowings under the New Revolving Facility or non-extending revolving facility. Revolver Class Vote to amend or waive. | ||||||||
| Asset Sales | |||||||||||
| 38. | Sale of obsolete or worn out property in ordinary course (§7.6(a)) | Uncapped sale or other disposition for fair market value of obsolete or worn out property or other property not necessary for operations | Limited to obsolete or worn out assets and other immaterial property. | ||||||||
| 39. | Asset Sale / Event of Loss Sweep (§2.12(c), 2.12(d)) | 100% of Net Cash Proceeds of Disposition by Loan Parties (individual or aggregate) and Event of Loss, in each case, in excess of $25 million, subject to reinvestment provisions (1 year plus 180 days if contractual obligations to reinvest arose during the 1 year, in each case, subject to no Event of Default). •Not limited to sale of Collateral. •Proceeds from the following Dispositions are excluded from sweep: •Disposition of obsolete or worn-out property in ordinary course of business at FMV. •Sale or disposition of products, services, receivables, and Permitted Investment, or licensing or sub-licensing of IP or other property in ordinary course of business and not interferes with the business of the Borrower and Restricted Subsidiaries; •Disposition with an FMV per year $50 million per fiscal year. Mandatory prepayments from asset sale proceeds are applied pro rata across term loan tranches. | a.Mandatory prepayments from asset sale proceeds shall be applied 70% to prepay the New Tranche B-2 Term Loan Facility on a pro rata basis and 30% to prepay the New Tranche B-3 Term Loan Facility on a pro rata basis, until the New Term Loans are repaid in full. b.$5 million per annum de minimis threshold. c.(i) Reinvestment within 1 year up to $50 million per annum subject to no EoD, shared with reinvestment right in replacement facilities with proceeds of permitted sale leasebacks described in the Sale/Leaseback below. (ii) If assets sold are Collateral, such proceeds must be reinvested in Collateral; if assets are sold by Loan Party, proceeds must be reinvested in a Loan Party. Revolver Class Vote to amend or waive this clause (c)(ii). d.Asset sale sweep and Event of Loss sweep apply to Disposition/loss by all Subsidiaries, not only Loan Parties. e.Notwithstanding the foregoing, all net cash proceeds received from the sale of Bounce or real estate portfolio must be used to pay down the Term Loans (with no reinvestment rights). | ||||||||
| 40. | Disposition of products in ordinary course (§7.6(b)) | Uncapped as long as in the ordinary course of business and consistent with past practice. | Limited to non-exclusive licensing or sub-licensing. | ||||||||
| 41. | Sale/Leaseback (§7.6(c), §7.9) | Subject to asset sale sweep, any Sale/Leaseback permitted by §7.9. Uncapped Sale/Leaseback Transaction of fixed or capital assets, plus an additional $40 million, subject to asset sale sweep and no Event of Default. | Unlimited sale-leasebacks (subject to the J.Crew blocker for the avoidance of doubt) made for 100% cash consideration and not less than FMV and 120 day requirement for fixed/capital assets, so long as 100% of proceeds used to repay Term Loans, subject to the right to reinvest within 365 days in a replacement facility of up to $50M per annum shared with the reinvestment right in respect of other asset sales. | ||||||||
| 42. | Disposition of radio assets (§7.6(e)) | Uncapped sale of radio assets or equity of a Restricted Subsidiary the asset of which are substantially all radio assets, subject to asset sale sweep and no Event of Default. | Remove basket. | ||||||||
| 43. | Exchange of television broadcast station or radio station or of long-term station operating assets or cash or any digital business (§7.6(g)) | Uncapped exchange for cash, Permitted Investments or Station operating assets or digital business operating assets, as along as (i) no Event of Default; (ii) for fair market value; (iii) maximum 35% cash consideration paid / received by Loan Parties; and (iv) delivery of 5 Business Day prior written notice to the Administrative Agent and other information required by Administrative Agent. | All cash proceeds subject to sweep. Must be for bona fide business purposes. | ||||||||
| 44. | General Asset Sale Basket (§7.6(h)) | Asset sales permitted at FMV and at least 75% cash proceeds or Permitted Investments (with designated non-cash consideration deemed to be cash consideration up to greater of $100 million and 2% of Consolidated Total Assets, shared with basket for non-cash consideration from sale of TV broadcast stations), subject to no EoD | 75% cash consideration. Designated non-cash consideration: $5 million. a.Must be for a bona fide business purposes. b.Cannot be used to sell all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole). Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 45. | Disposition of television broadcast station or long-term station operating assets or of any digital business (§ 7.6(i)) | Uncapped, so long as (i) for fair market value, (ii) 75% proceeds consist of cash or Permitted Investment; (iii) no Event of Default, and (iv) written notice to the Administrative Agent 5 Business Day ahead of the disposition, with additional information that the Administrative Agent may require. Designated non-cash consideration: $100 million or 2.0% of Consolidated Total Assets, shared with the general basket under §7.6(h). | Designated non-cash consideration to be $5 million. a.Must be for a bona fide business purpose b.Cannot be used to sell all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole). Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 46. | FCC Auction sale (§7.6(j)) | Uncapped Disposition of equipment, spectrum usage rights, broadcast licenses, or related assets in connection with any spectrum reallocation resulting from the FCC’s incentive auction of TB broadcast spectrum pursuant to 47 U.S.C. §1452(b)(4)(A). | Must be for fair market value and bona fide business purposes. Proceeds shall be subject to Asset Sale Sweep. | ||||||||
| 47. | Additional De Minimis Asset Sale Basket (§7.6(k)) | Aggregate fair market value cannot exceed $50 million in any fiscal year | $10 million in any fiscal year. If used for sale of Bounce or sale of real estate assets, proceeds shall be subject to Asset Sale Sweep. | ||||||||
| 48. | Others | N/A | No disposition of Equity of Loan Party to non-Loan Party and any permitted disposition will be deemed to be an Investment and utilize capacity under §7.4(k). Revolver Class Vote to amend or waive. | ||||||||
| Other basket related items | |||||||||||
| 49. | Available Amount | Means an amount equal to the sum of: •$135 million plus •the Cumulative Retained Excess Cash Flow Amount plus •returns in cash on Investments made utilizing the Available Amount plus •FMV of Investments in Unrestricted Subs that are redesignated Restricted Subs plus •the amount of all Net Proceeds From Equity Issuance plus •Retained Declines Proceeds plus •$195 million minus •any usage of the Available Amount baskets for Investments or RPs | See #22 above. | ||||||||
| 50. | Growers | Various baskets equal to the greater of a dollar amount and percentage of EBITDA or Consolidated Total Assets. | Eliminate EBITDA and Assets growers. | ||||||||
| Financial Terms | |||||||||||
| 51. | Consolidated EBITDA | Add-backs include: •Uncapped fees, expenses, charges or losses related to any issuance of Equity Interests, investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness (whether or not successful), and modifications •All extraordinary, unusual or non-recurring expenses, losses or items •All non-recurring cash expenses for business optimization expenses and other restructuring charges •Pro forma run rate cost savings, operating expense reductions and synergies – 25% Consolidated EBITDA cap 12 month look-forward period •Comcast Retransmission Adjustment | To be the same as existing except: (i) all references to “synergies” clause (iii) shall be replaced with a reference to “cost synergies”; (ii) the reference to “24 months” in clause (iii)(y) shall be changed to “12 months”; (iii) pro forma cost-saving add-backs, Regulation S-X add-backs, non-recurring cash add-backs and extraordinary losses exclusion in CNI capped at 20% in the aggregate.; and (iv) clause (iv) shall be deleted. Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 52. | Consolidated Total Debt | Does not include a carveout for “all obligations under any Qualified Securitization Financing or Receivables Facility”. | To expressly carveout “all obligations under any Qualified Securitization Financing or Receivables Facility”. Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 53. | Cash Netting | Uncapped | $50 million Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 54. | Excess Cash Flow | Consolidated EBITDA plus decrease in Working Capital minus various deductions including: •Taxes paid in cash; •Interest paid in cash; •Principal debt repayments; •Cash spent on acquisition, investments and dividends; •Certain capital expenditures; •Net increases in Working Capital; •Cash spent on contractual obligations not completed yet but planned for the near term. | Exclude §7.4(k) as a deduct. | ||||||||
| 55. | Excess Cash Flow sweep (§2.12(e) and the definition of “Required Percentage”) | With respect to an Excess Cash Flow Period, the Borrower shall apply 50% of Excess Cash Flow to the prepayment of Term Loans, with step-downs to 25% and 0% at a First Lien Net Leverage Ratio of less than or equal to 3.50 to 1.00 and 3.00 to 1.00, respectively. The Cumulative Retained Excess Cash Flow Amount builds the Available Amount, which is subject to a leverage test and no Event of Default. | (i)With respect to the first $100 million of Excess Cash Flow, 100% of such Excess Cash Flow shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; (ii)With respect to the next $100 million of Excess Cash Flow, 65% of such Excess Cash Flow shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; (iii)With respect to any amount above $200 million of Excess Cash Flow, 50% shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; in each case, on a pro rata basis between the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; provided that for the fiscal year ending December 31, 2026 only, the first $50 million of Excess Cash Flow shall be paid to the New Tranche B-3 Term Loans. The portion of Excess Cash Flow not required to prepay the New Term Loans (the “Cumulative Retained Excess Cash Flow Amount”) shall (i) build the Available Amount and (ii) separately build capacity to prepay or redeem the 2027 Unsecured Notes or other junior indebtedness (including any refinancings of the 2027 Unsecured Notes or other junior indebtedness) (the “Junior Debt ECF Basket”), in each case from the new closing date. For the avoidance of doubt, usage of the Junior Debt ECF Basket shall not be subject to a leverage test or default blocker. Any usage of such Cumulative Retained Excess Cash Flow Amount under the Available Amount shall reduce availability under the Junior Debt ECF Basket and any usage of such Cumulative Retained Excess Cash Flow amount under the Junior Debt ECF Basket shall reduce availability under the Available Amount. Declined Junior Debt ECF to be offered to Term Loans on pro rata basis before they can be used to build RP basket capacity for preferred dividends. ECF declined by Term Loan Lenders may be used to repay junior debt or make preferred dividends. | ||||||||
| Definitions | |||||||||||
| 56. | “Unrestricted Subsidiary” | Ability to create Unrestricted Subsidiaries. | Eliminate “Unrestricted Subsidiaries” concept globally. See row 64, clause 4(e) below | ||||||||
| 57. | “Material Subsidiary” | 5.0% of the total assets or 5% of revenues or net income of the Borrower and its Subsidiaries. | 2.5% of the total assets or 2.5% of revenues or net income individually or in the aggregate, of the Borrower and its Subsidiaries. | ||||||||
| 58. | “Immaterial Subsidiary” | N/A | Any direct or indirect Subsidiary of the Borrower that is not a Material Subsidiary. | ||||||||
| 59. | “Obligations” | Various | To include all prepayment premium and expressly refer to the indemnity under §10.3. | ||||||||
| 60. | “Material Indebtedness” | (b) Indebtedness (other than the Loans and Letters of Credit) of the Borrower or any of its Restricted Subsidiaries, individually or in an aggregate committed or outstanding amount exceeding $50,000,000. | $25 million. | ||||||||
| Miscellaneous | |||||||||||
| 61. | Articles III, IV and V | Various | Articles III, IV and V subject to specialist comments to be mutually agreed in connection with definitive documentation to reflect customary provisions for credit agreements of this nature. | ||||||||
| 62. | Waivers and Amendment (§7.15) | No amendment or waiver with respect to Organizational Documents that would be materially adverse to the Lenders. No amendment, modification or waiver with respect to the terms of any Junior Debt unless no Material Adverse Effect. | No modification, amendment or waiver to Junior Debt documents if materially adverse to Lenders. Modifications that are deemed to be materially adverse to the interests of the Lenders to include, without limitation: (i) the inclusion of a financial maintenance covenant, (ii) the imposition of additional mandatory prepayment obligations, (iii) amendments that shorten the scheduled final maturity or shorten the weighted average life to maturity of the applicable Indebtedness, (iv) restrictions on the ability of the Borrower or any Guarantor to make payments under the loan documents or (v) amendments to the level of cash interest payments. | ||||||||
| 63. | Event of Default (Article VIII) | Various Cross-default threshold of $50 million | The “Restricted Material Subsidiaries” in §8.1(h), §8.1(i) and §8.1(j) to be changed to “the Borrower or any Subsidiary other than Immaterial Subsidiaries”. Cross-default threshold of $25 million. | ||||||||
| 64. | “Chewy” Blocker (§9.9) | None. Guarantor shall be released if ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Loan Documents. | No Guarantor shall be released from its obligations under its Guaranty unless each of the following conditions are satisfied: a.no Default or Event of Default shall have occurred and be continuing. b.Guarantor ceases to be a Subsidiary. c.the primary purpose of the transaction resulting in such release must be for a bona fide business purpose in a transaction on an arm’s length basis with an unaffiliated third party, and not to evade the obligations under the applicable Guaranty. d.at the time of such release (after giving effect thereto), all outstanding debt of, and investments in, such Guarantor would then be permitted to be made under in accordance with the relevant provisions of the debt and investment covenants (without relying on capacity provided for in §7.4(d)). e.such Subsidiary shall not be (or shall be simultaneously released as) a guarantor under other funded debt. | ||||||||
| 65. | Amendments (§10.2(b)) | Various | 1.Consent of each affected Term Lender is required for changes to §2.12(g). Required Lender vote for changes to mandatory prepayment provisions (subject to the reinvestment right in Loan Parties as covered below). 2.Consent of all Lenders for changes to §2.21(c) or any other provision on pro rata treatment and application of proceeds. 3.Consent of all affected lenders for changes to §2.28(a) and §2.29 with respect to the requirement to offer to the applicable lenders. | ||||||||
4. All Lender vote for the following amendments; provided that if the transaction is offered to all lenders on the same terms (including any consent fee, all backstop fees (except as provided below) and all other economics and structural and other protections to be included but excluding bona fide good faith market backstop fees) at the same time based on their pro rata share of outstanding loans and commitments (after giving effect to any pro rata reductions of commitments as part of the transactions), then 66.67% vote plus Revolver Class Vote; a.Chewy Blocker b.J. Crew Blocker c.Double Dip Protection d.changes to §10.4(b)(v) e.permitting to exist or designate any subsidiary as an “unrestricted subsidiary” or changes to “Subsidiary” to permit the existence of an entity outside of the covenants f.LME Covenant (including definition of “Liability Management Transaction” and application of the term “Liability Management Transaction” in Credit Documents) g.Incora blocker h.Pluralsight blocker (subject to review and agreement on the appropriate language) 5. Affected lender vote to: a.postpone, or have the effect of postponing, any date scheduled for the payment of principal interest, premiums, fees or any other amount (including by making any payment payable in kind rather than in cash); b.change, or have the effect of changing, the type or currency of any payment; c.extend, or have the effect of extending or adding, any grace period relating to, any payment of principal of, or interest on, any Loans, or any fees or other amounts payable for more than 10 Business Days (provided; however, the 10 Business Day period shall not apply to payment of principal); | |||||||||||
| Required Lenders cannot waive any EoD related to a transaction violates RC-specific class voting provisions, which transaction shall be void ab initio. In addition, the right of any lender to bring suit for the enforcement of any payment of principal of, and premium (if any) or interest on, any loan on or after the maturity date applicable thereto shall not be impaired or affected without the consent of such lender. 6. §10.2(b)(x) will be changed to also apply to each Term Loan class separately and §10.2(b)(ix) for the Revolving Lenders should be changed in a similar manner to also apply to each Revolving Loan class separately. 7. Revolver Class Vote to (x) amend or waive any provision of any existing ICA or enter into a new ICA or (y) amend or waive any waterfall or remedial provisions in any Security Document that adversely and disproportionately affects the rights, remedies and/or pro rata treatment of the Revolver. 8. Amendments to §2.27 will include any other similar provision in any Loan Document. 9. All lender vote amend, modify or waive any definition to the extent applicable to any of the sacred rights provisions to the extent such amendment, modification or waiver would have the effect of any of the amendments, modifications or waivers that are limited by such clauses (except in connection with a transaction that satisfies the requirement to offer to all lenders, in which case the voting standards applicable thereto will apply (66.67% plus Revolver Class Vote). 10. Add express reference to “Required Revolving Lenders” (or similar term) to §10.2(b)(v). 11. Maintain existing revolver protections with respect to the financial covenant §10.2(b)(x)) (second sentence). 12. Revolver Class Vote shall be required to waive any condition to any Credit Extension of Revolving Loans (including the waiver of any Default or Event of Default the absence of which would be a condition to any Credit Extension of Revolving Loans). 13. Collateral/Guarantee Matters: All lender vote to amend the guarantor coverage test or release all or a material portion of the collateral or value of the guarantees; otherwise, any amendments that strip or release Collateral or amendments to the perfection requirements or Excluded Property or the requirement for DACAs require the consent of the Required Lenders plus the Revolver Class Vote. Otherwise no changes from Existing Credit Agreement. | |||||||||||
| 66. | Anti-Serta Protection (§10.2(b)(vii)) | (vii) permit or allow any sale or release of, or the subordination of the Administrative Agent’s Lien in, all or substantially all of the Collateral except in conjunction with sales, transfers or releases of Collateral permitted hereunder, including §9.9, without the written consent of each Lender | All lender consent vote for lien or payment subordination with respect to, or sale or release of, all or a material portion of the Collateral or the value of the guarantees; provided that if the transaction is offered to all lenders on the same terms (including any consent fee, all backstop fees and all other economics and structural and other protections to be included but excluding bona fide good faith market backstop fees) at the same time based on their pro rata share of the outstanding loans and commitments (after giving effect to any pro rata reductions of commitments as part of the transactions), then 66.67% vote plus Revolver Class Vote. Required Lender vote (no class voting) in connection with a DIP financing offered to all lenders on the same terms and conditions (including backstop fees, premiums and expenses, and all other economics and structural and other protections). | ||||||||
| 67. | Enter Consents | N/A | Disallow incurrence and/or reduction of obligations/commitments with the purpose to influence voting unless consented to by all affected Lenders. | ||||||||
| 68. | Expenses; indemnification (§10.3) | Various | Indemnification to cover transactions under the TSA and the Revolver Commitment Letter and both included as part of the secured obligations. | ||||||||
| 69. | Schedules | Various | All schedules to be reasonably satisfactory to the AHG. | ||||||||
| 70. | Limited Conditionality Acquisitions (§1.5) | Various | Remove and eliminate “Limited Conditionality Acquisitions” concept globally. | ||||||||
| 71. | Taurus Acquisition related terms, Cordillera Acquisition related terms | Various | Remove and eliminate such concepts globally. | ||||||||
| 72. | LME provisions | N/A | Neither the Borrower nor any of its respective Subsidiaries shall directly or indirectly, (i) create, incur, assume or otherwise become or remain liable with respect to any Indebtedness or issue any Equity Interests, (ii) create, incur, assume or permit or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits therefrom, (iii) make or own any Investment in any other Person, (iv) enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution) or (v) convey, sell, lease or otherwise dispose of all or any part of its property or assets or to otherwise engage in any other activity, in each case, that is undertaken in connection with a Liability Management Transaction.4 | ||||||||
| 73. | J. Crew Blocker | N/A | (a) the Borrower shall not, nor shall it permit any Subsidiary to, transfer (whether as an Investment, Restricted Payment, Disposition or otherwise) in any respect, whether directly or indirectly or by one or more transactions (including pursuant to the release of any guaranty provided by any Loan Party or the transfer of equity of a Person that owns material Intellectual Property or otherwise transfer legal or beneficial ownership of, or an exclusive license to, any material intellectual property) any material intellectual property or any other material property or material asset to (x) any Subsidiary that is not a Subsidiary Loan Party, (y) any other Affiliate of the Borrower that is not a Loan Party or (z) any joint venture entity, (b) (i) no Subsidiary that is not a Subsidiary Loan Party, (ii) no other Affiliate of the Borrower that is not a Loan Party and (iii) no joint venture entity shall own or hold an exclusive license to any material intellectual property or any other material property or material asset at any time and (c) no Loan Party that owns or holds any material intellectual property or any other material property or material asset shall be permitted to become a non-Loan Party (it being understood that any dispositions, transfers or licenses or transactions made in contravention of this provision shall be void ab initio). To the extent that any ownership of any material intellectual property vests in a Subsidiary or any other Affiliate of the Borrower that is not a Loan Party or any joint venture entity, such Subsidiary, Affiliate or joint venture shall, as promptly as reasonably practicable, assign such ownership of such material intellectual property to a Loan Party or be designated as a Loan Party. With respect to joint ventures, shall not be construed to prohibit any investment made in compliance with §7.4(e), (k) and (m). FCC Licenses and spectrum to be expressly included under the definition of “material Intellectual Property”. For the avoidance of doubt, this restriction shall not apply to the sale, transfer or disposition of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets in connection with a permitted receivables facilities or qualified securitization facility. | ||||||||
| 74. | Guarantor Coverage Test (§5.12, “Aggregate Subsidiary Threshold”) | At least 90% of total consolidated revenue and 90% of Consolidated Total Assets of the restricted group must provide credit support for the Obligations under the Credit Agreement. Excluded Foreign Subsidiaries “Aggregate Subsidiary Threshold” shall mean an amount equal to ninety percent (90%) of the total consolidated revenue of the Borrower and its Restricted Subsidiaries for the most recent fiscal period as shown on the income statement of the Borrower most recently delivered pursuant to §5.1(a) or (b), as applicable, and ninety (90%) of the Consolidated Total Assets; provided, that, for purposes of determining the Aggregate Subsidiary Threshold as of the Closing Date, such determination shall be based on the pro forma balance sheet and related pro forma consolidated statement of income of the Borrower and its Restricted Subsidiaries provided to the Administrative Agent pursuant to §3.1(xiv). | 95% | ||||||||
| 75. | Excluded Equity Interest (§1 of Security Agreement) | Equity Interests of any Foreign Subsidiary to the extent such Equity Interest exceeds 65% of the voting power of all classes of Equity Interests of such Foreign Subsidiary entitled with vote. | OK to remove so long as no tax consequences for such Foreign Subsidiary. | ||||||||
| 76. | Account Control Agreement (§5.11 of Credit Agreement and §5(e) of Security Agreement) | Deliver Blocked Account Agreements within 5 Business Day upon opening any Deposit Accounts or Investment Accounts and Collateral Related Accounts. | DACAs required subject to customary carveouts and de minimis threshold (we would expect to have DACAs over existing accounts but we will need to conduct diligence on the company’s bank accounts to ensure that all material accounts are covered for the benefit of the lenders). | ||||||||
| 77. | “Excluded Property” (Defined in Security Agreement) | "Excluded Property" means, collectively, (i) any permit, lease, license, contract, instrument, Equity Interest or other agreement held by any Grantor that prohibits, or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation by such Grantor of a Lien thereon and such consent has not been obtained, or any permit, lease, license contract or other agreement held by any Grantor to the extent that any Requirement of Law prohibits the creation of a Lien thereon, but only, in each case, to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (ii) any "intent to use" Trademark applications for which a statement of use has not been filed (but only until such statement is filed), (iii) any Deposit Account exclusively used for all or any of payroll, benefits, taxes, escrow, customs, insurance impress accounts or other fiduciary purposes, (iv) Equipment owned by any Grantor that is subject to a Lien securing a purchase money obligation or Capital Lease Obligation to the extent permitted under the Credit Agreement if the contract or other agreement in which such Lien is granted (or in the documentation providing for such Capital Lease) prohibits or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation of any other Lien on such Equipment and such consent has not been obtained, and (v) any FCC License; provided, however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above (unless such Proceeds, substitutions or replacements would constitute "Excluded Property" as defined above) provided, further, that if and when (1) the granting of such security interest is not so prohibited, or (2) upon the consent of any holder of a Lien of the type described in clause (i) or (iv) above, the Administrative Agent will be deemed to have, and at all times to have had, a Security Interest in such Excluded Property. | “Excluded Property” means, collectively, (i) any permit, lease, license, contract, instrument, Equity Interest or other agreement held by any Grantor that prohibits, or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation by such Grantor of a Lien thereon and such consent has not been obtained, or any permit, lease, license contract or other agreement held by any Grantor to the extent that any Requirement of Law prohibits the creation of a Lien thereon, but only, in each case, to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (ii) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed), (iii) any Deposit Account exclusively used for all or any of payroll, benefits, taxes, escrow, customs, insurance impress accounts or other fiduciary purposes, (iv) Equipment owned by any Grantor that is subject to a Lien securing a purchase money obligation or Capital Lease Obligation to the extent permitted under the Credit Agreement if the contract or other agreement in which such Lien is granted (or in the documentation providing for such Capital Lease) prohibits or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation of any other Lien on such Equipment and such consent has not been obtained, in each case after giving effect to the anti-assignment provisions in the UCC or other applicable law, and (v) any FCC License to the extent (but only to the extent) that at such time the Collateral Agent may not validly possess a security interest therein pursuant to applicable Communications Laws, but the Collateral shall include, to the maximum extent permitted by law, all rights incident or appurtenant to the FCC License, the economic value of the FCC License, and the right to receive all proceeds derived from or in connection with the direct or indirect sale, assignment or transfer of the FCC License; provided that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above (unless such Proceeds, substitutions or replacements would constitute “Excluded Property” as defined above) provided, further, that if and when (1) the granting of such security interest is not so prohibited, or (2) upon the consent of any holder of a Lien of the type described in clause (i) or (iv) above, the Administrative Agent will be deemed to have, and at all times to have had, a Security Interest in such Excluded Property; provided, further, that, no asset or property shall constitute Excluded Property if such asset or property secures any Indebtedness that is secured on a pari passu basis with the Liens securing the Obligations or any Junior Debt (or any refinancings or successive refinancings in respect each of the foregoing). | ||||||||
| 78. | “Subsidiary” | “Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower. Notwithstanding the foregoing (except as used in the definition of Unrestricted Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its respective Subsidiaries for purposes of this Agreement or any other Loan Document, and the financial statements and consolidation of accounts of the Borrower and its Restricted Subsidiaries shall not, for purposes of this Agreement, be consolidated with any Unrestricted Subsidiary. | If the Borrower or any of its respective Subsidiaries owns or controls any equity interest of any Person and such ownership or control does not satisfy the requirements set forth in clauses (i) or (ii) above, such Person shall be deemed to be a “Subsidiary” hereunder unless such ownership or control is for legitimate business purposes and not for the purpose of effectuating any Liability Management Transactions. | ||||||||
| 79. | Others | N/A | Subject to further discussion with securitization providers, lenders to have a first lien on the equity of a newly formed SPV that is the direct or indirect parent of the A/R SPV Borrower (but not the A/R SPV Borrower) and will be subject to a non-disturbance/standstill agreement in favor of the securitization providers. | ||||||||
The Credit Agreement Amendment, in respect of the Credit Agreement Exchange Offer & Amendment, will: (1)eliminate substantially all of the conditions precedents and related provisions in the Existing Credit Agreement, including the following conditions precedents: •Section 3.1 Conditions To Effectiveness; •Section 3.2 Each Credit Event; •Section 3.3 Delivery of Documents; •Section 3.4 Effect of Amendment and Restatement. (2)eliminate substantially all of the representations and warranties and related provisions in the Existing Credit Agreement, including the following representations and warranties: •Section 4.1 (Existence, Power); •Section 4.2 (Organizational Power; Authorization); •Section 4.3 (Capital Stock and Related Matters); •Section 4.4 (Governmental Approvals; No Conflicts); •Section 4.5 (Financial Statements); •Section 4.6 (Liabilities, Litigation and Environmental Matters); •Section 4.7 (Compliance with Laws and Agreements); •Section 4.8 (Material Contracts); •Section 4.9 (Investment Company Act, Etc.); •Section 4.10 (Taxes); •Section 4.11 (Margin Regulations); •Section 4.12 (ERISA); •Section 4.13 (Ownership of Property; Intellectual Property); •Section 4.14 (Disclosure); •Section 4.15 (Labor Relations); •Section 4.16 (Subsidiaries and Joint Ventures); •Section 4.17 (Solvency); •Section 4.18 (EEA Financial Institutions); •Section 4.19 (Patriot Act); •Section 4.20 (Anti-Corruption Laws and Sanctions); •Section 4.21 (Security INterests); •Section 4.22 (Use of Proceeds); •Section 4.23 (Licenses; FCC); •Section 4.24 (Beneficial Ownership Certification); | ||
(3) eliminate substantially all of the affirmative covenants and related provisions in the Existing Credit Agreement, including the covenants: • Section 6.2 (First Lien Net Leverage Ratio); • Section 6.3 (Pro Forma Adjustments); • Section 5.1 (Financial Statements and Other Information); • Section 5.2 (Notice of Material Events); • Section 5.3 (Existence; Conduct of Business); • Section 5.4 (Compliance with Laws, Etc.); • Section 5.5 (Payment of Obligations); • Section 5.6 (Books and Records); • Section 5.7 (Visitation, Inspection, Etc.); • Section 5.8 (Maintenance of Properties; Insurance); • Section 5.9 (Use of Proceeds and Letters of Credit); • Section 5.10 (Further Assurances); • Section 5.11 (The Blocked Accounts); • Section 5.12 (Formation of Subsidiaries); • Section 5.13 (Real Estate); • Section 5.14 (Post-Closing Obligations); • Section 5.15 (Corporate Credit Ratings); • Section 5.16 (Conference Calls); (4) eliminate substantially all of the negative covenants and related provisions in the Existing Credit Agreement, including the following covenants: • Section 7.1 (Indebtedness); • Section 7.2 (Liens; Negative Pledge); • Section 7.3 (Fundamental Changes; Permitted Acquisitions); • Section 7.4 (Investments, Loans, Etc.); • Section 7.5 (Restricted Payments); • Section 7.6 (Sale of Assets); • Section 7.7 (Transactions with Affiliates); • Section 7.8 (Restrictive Agreements); • Section 7.9 (Sale and Leaseback Transactions); • Section 7.10 (Business of the Borrower and its Restrictive Subsidiaries); • Section 7.12 (Accounting Changes); • Section 7.15 (Waivers and Amendments); • Section 7.16 (Bank Accounts); (5) eliminate the mandatory prepayments and related provisions in set forth in clauses (b), (c), (d) and (e) of Section 2.12 in the Existing Credit Agreement; | ||
| (6) eliminate the Events of Default and related provisions in paragraphs (c), (d) (with respect to those covenants that are the subject of the Credit Agreement Amendment), (e) (with respect to those covenants that are the subject of the Credit Agreement Amendment), (f), (g), (h), (i) (other than in respect of the Borrower), (j), (k), (l), (m), (n), (o), (p) and (q) of Section 8.1 (Events of Default) of the Existing Credit Agreement; (7) make amendments to document that the Required Lenders (as defined in the Existing Credit Agreement) shall consent to the designation of the Existing Credit Agreement as “Additional First Lien Obligations” (as defined in the Existing Intercreditor Agreement) and shall consent to such amendments to the Existing Intercreditor Agreement the parties agree are required to expressly appoint JPMorgan Chase Bank, N.A., as administrative agent and collateral agent under the New Credit Agreement, as “Controlling Collateral Agent” under the Existing Intercreditor Agreement; (8) make amendments to document that any payments in respect of principal, accrued fees and interests of the New Tranche B-2 Term Loans, the New Tranche B-3 Term Loans, the New Revolving Credit Commitments and the commitments under the Non-Extended Revolving Credit Facility shall be prior to any payments in respect of principal, accrued fees and interest of the Existing Tranche B-3 Term Loans held by Non-Participating Tranche B-3 Term Loan Lenders (or provide that the Existing Collateral Agent shall enter into an intercreditor agreement with the agent under the New Credit Agreement to provide such priority); (9) amend and restate the definition of “Unrestricted Subsidiary” in its entirety as follows: ““Unrestricted Subsidiary” shall mean (1) any Subsidiary of the Borrower, whether now owned or hereafter acquired or created, that is designated by the Borrower as an Unrestricted Subsidiary, and (2) any Subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”).”; (10) provide that, with respect to any Lender under the Existing Credit Agreement that is providing New Revolving Credit Commitments or Non-Extended Revolving Credit Commitments in an amount equal to the commitments under the Existing Revolving Credit Facility immediately prior to the transactions set forth in the TSA, any commitments under the Existing Revolving Credit Facility and any Existing Revolving Loans are terminated; (11) make amendments to permit the assignment and/or release of the Deposit Account Control Agreements (as defined in the certain Amended and Restated Pledge and Security Agreement, dated as of April 1, 2015, among the Company, Suntrust Bank as Administrative Agent, and the other parties thereto from time to time (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Security Agreement”) to the New Credit Agreement Agent; (12) provide that an entity to be agreed will be the administrative agent and collateral agent as successor to Wells Fargo Bank, National Association; (13) make any other amendment that the Company Group and the Required Consenting Holders that are Lenders under the Existing Credit Agreement deem necessary or desirable, in each case, to the extent that such amendment may be made with the consent of the Company and the Consenting Holders that are Lenders under the Existing Credit Agreement; and (14) the definitive documentation for the Credit Agreement Amendment shall be consistent with this Exhibit C in all material respects, with such modifications as contemplated by clause (9) above. | ||
JPMORGAN CHASE BANK, N.A. 383 Madison Avenue New York, NY 10179 | BANK OF AMERICA, N.A. 401 N. Tryon St. Charlotte, NC 28255 | TRUIST BANK 3333 Peachtree Road, N.E. Atlanta Financial Center, South Tower Atlanta, GA 30326 | ||||||
MORGAN STANLEY SENIOR FUNDING, INC. 1585 Broadway New York, New York 10036 | CAPITAL ONE, NATIONAL ASSOCIATION 299 Park Avenue New York, NY 10167 | WELLS FARGO BANK, NATIONAL ASSOCIATION 550 South Tryon St. Charlotte, NC 28202 | ||||||
FIFTH THIRD BANK, NATIONAL ASSOCIATION Fifth Third Center 38 Fountain Square Plaza Cincinnati, Ohio 45263 | PNC CAPITAL MARKETS LLC PNC BANK, NATIONAL ASSOCIATION The Tower at PNC 300 Fifth Avenue Pittsburgh, PA 15222 | |||||||
| JPMORGAN CHASE BANK, N.A. | ||||||||
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| PNC BANK, NATIONAL ASSOCIATION | ||||||||
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| Name: | ||||||||
| Title: | ||||||||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||||||
By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| FIFTH THIRD BANK, NATIONAL ASSOCIATION | ||||||||
By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| THE E.W. SCRIPPS COMPANY | ||||||||
By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Borrower: | The E.W. Scripps Company, an Ohio corporation (the “Borrower”). | ||||
Revolving Lenders: | JPMorgan Chase Bank, N.A., Bank of America, N.A. (or any of its affiliates designated to act in such capacity), Truist Bank, Morgan Stanley Bank, N.A., Capital One, National Association and PNC Bank, National Association (each a “Revolving Lender” and, collectively, the “Revolving Lenders”) and such other financial institutions and other entities arranged by the Lead Left Arranger in consultation with the Borrower. | ||||
Administrative Agent and Swingline Lender: | JPMorgan Chase Bank, N.A. (in such capacities, the “Administrative Agent” or the “Swingline Lender”, as the case may be). | ||||
Joint Lead Arrangers and Joint Bookrunners: | JPMorgan Chase Bank, N.A., Bank of America, N.A., Truist Securities, Inc. and Morgan Stanley Senior Funding, Inc. (the “Lead Arrangers”). | ||||
Co-Managers: | Capital One, National Association, Wells Fargo Bank, National Association, Fifth Third Bank, National Association and PNC Capital Markets LLC. | ||||
Documentation Principles: | The terms of the New Revolving Facility will be documented in a new credit agreement that will also govern the New Tranche B-2 Term Loans and New Tranche B-3 Term Loans, each as defined in the Transaction Support Agreement, dated as of the date hereof (the “TSA”), by and among the Borrower, the Guarantors and the Consenting Holders (as defined therein) party thereto and will be based on the Existing Credit Agreement as updated to (i) give effect to the terms set forth in this Term Sheet and (ii) reflect the agreed modifications set forth in Annex II (the “Agreed Modifications”). | ||||
Facility: | A senior secured revolving credit facility (the “New Revolving Facility”, the loans thereunder, the “New Revolving Loans” and the commitments thereunder, the “New Revolving Commitments”) in an aggregate principal amount equal to $208 million, including a $25 million sublimit for the issuance of standby letters of credit (each, a “Letter of Credit”) by each Revolving Lender on a pro rata basis based on its commitment under the New Revolving Facility as of the Closing Date, and a $10 million sublimit for swingline loans (each, a “Swingline Loan”). Each Revolving Lender will purchase an irrevocable and unconditional participation in each Letter of Credit and Swingline Loan. | ||||
Use of Proceeds: | On and after the Closing Date, the New Revolving Facility will be used to provide ongoing working capital and for other general corporate purposes of the Borrower and its subsidiaries. | ||||
Closing Date: | The date of the effectiveness of the New Revolving Facility is referred to herein as the “Closing Date.” | ||||
Availability: | The New Revolving Facility will be available on a revolving basis from and after the Closing Date until the Revolving Credit Maturity Date (as defined below). | ||||
Incremental Facilities: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Refinancing Facilities: | Substantially the same as under the Existing Credit Agreement. | ||||
Interest Rates and Fees: | As set forth on Annex I hereto. | ||||
Default Rate: | With respect to overdue principal, the applicable interest rate plus 2.00% per annum, and with respect to any other overdue amount (including overdue interest), the interest rate applicable to ABR loans (as defined in Annex I hereto) plus 2.00% per annum and in each case, shall be payable on demand. | ||||
Letters of Credit: | Substantially the same as under the Existing Credit Agreement. | ||||
Final Maturity: | July 7, 2027; subject to a springing maturity date (the “Springing Date”) that is (i) to the extent that more than $50 million in aggregate principal amount (including any refinancing that matures less than 180 days after the then latest maturity date of the New Revolving Facility) of the Borrower’s 5.875% senior notes due July 15, 2027 (the “2027 Unsecured Notes”) remains outstanding on such date, the date that is 180 days earlier than the stated final maturity with respect to the 2027 Unsecured Notes and (ii) if $50 million or less in aggregate principal amount of 2027 Unsecured Notes (including any refinancing that matures less than 180 days after the then latest maturity date of the New Revolving Facility) remain outstanding on any date from 180 days earlier than the stated maturity of the 2027 Unsecured Notes to the earlier of (x) the repayment in full or refinancing in full with indebtedness maturing more than 180 days after the then-latest maturity date of the New Revolving Facility, in each case, of the 2027 Unsecured Notes and (y) the stated maturity date of the 2027 Unsecured Notes, the first date on which the Borrower is unable to demonstrate to the Administrative Agent that it has sufficient liquidity (excluding any portion of the A/R Securitization Facility (as defined in the TSA)) to repay or refinance such remaining portion of the 2027 Unsecured Notes (the earlier of the Springing Date and July 7, 2027, the “Revolving Credit Maturity Date”). | ||||
Guarantees: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Security: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications); provided that the Collateral shall exclude (i) equity interests in any Securitization Subsidiary and (ii) Receivables Assets and Securitization Assets sold or contributed to a Securitization Subsidiary in connection with any Qualified Securitization Financing or Receivables Facility, as the case may be; provided further that any accounts receivable or related assets that are not subject to any Qualified Securitization Financing or Receivables Facility shall remain “Collateral”. “Receivables Assets” shall mean (a) any accounts receivable generated in the ordinary course of business owed to the Borrower or a Subsidiary (as defined in the Existing Credit Agreement, subject to the Agreed Modifications) and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by the Borrower to a commercial bank or an affiliate thereof in connection with a Receivables Facility. “Receivables Facility” shall mean an arrangement between the Borrower or a Subsidiary and a commercial bank or an Affiliate thereof pursuant to which (a) the Borrower or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank (or such Affiliate) accounts receivable owing by customers, together with Receivables Assets related thereto, at a maximum discount, for each such account receivable, not to exceed 5.0% of the face value thereof, (b) the obligations of the Borrower or such Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations) to the Borrower and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements. The aggregate amount of commitments outstanding at any one time under all Receivables Facilities and Securitization Facilities shall not exceed $450,000,000 in the aggregate and in no event shall any borrowing thereunder exceed the lesser of $450,000,000 and the borrowing base under such facility. “Securitization Assets” shall mean any accounts receivable generated in the ordinary course of business and related assets customary for inclusion in receivables/securitization transactions, in each case subject to a Securitization Facility. “Securitization Facility” shall mean any of one or more securitization financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of its Restricted Subsidiaries sells its Securitization Assets to either (a) a person that is not a Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells, or grants a security interest in, Securitization Assets to another Securitization Subsidiary or a person that is not a Restricted Subsidiary. The aggregate amount of commitments outstanding at any one time under all Receivables Facilities and Securitization Facilities shall not exceed $450,000,000 in the aggregate and in no event shall any borrowing thereunder exceed the lesser of $450,000,000 and the borrowing base under such facility. | ||||
“Securitization Repurchase Obligation” shall mean any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. “Securitization Subsidiary” shall mean any subsidiary in each case formed for the purpose of and that solely engages in one or more Qualified Securitization Financings and other activities reasonably related thereto. “Standard Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a securitization financing, including those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. “Qualified Securitization Financing” shall mean any Securitization Facility of a Securitization Subsidiary that meets the following conditions: (i) the board of directors or any authorized committee of such board of directors of the Borrower shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries, (ii) all sales of the Securitization Assets and related assets by the Borrower or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made at fair market value (as determined in good faith by the Borrower) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries (other than a Securitization Subsidiary) to secured indebtedness under the credit agreements prior to engaging in any securitization financing shall not be deemed a Qualified Securitization Financing. | |||||
Mandatory Prepayments: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Voluntary Prepayments: | Substantially the same as under the Existing Credit Agreement; provided that the Borrower shall pay a “prepayment premium” in connection with any prepayment or repayment (including in connection with any refinancing, replacement, discharge, defeasance or similar transaction, or acceleration of the Term Loans on the exercise of remedies but, for the avoidance of doubt, excluding any mandatory prepayments) with respect to all or any portion of the New Tranche B-2 Term Loan Facility or New Tranche B-3 Term Loan Facility that occurs on or before the date that is twelve months after the Closing Date, in an amount equal to 1.00% of the principal amount of the New Tranche B-2 Term Loan Facility or New Tranche B-3 Term Loan Facility, as the case may be. | ||||
Conditions Precedent to Effectiveness of the New Revolving Facility: | The availability of the effectiveness of the New Revolving Facility on the Closing Date, will be subject solely to the applicable conditions in Exhibit B to the Commitment Letter. | ||||
| Conditions to All Borrowings: | The making of each extension of credit under the New Revolving Facility shall be substantially the same as the Existing Credit Agreement. | ||||
Representations and Warranties: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Affirmative Covenants: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Negative Covenants: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Financial Covenant: | The New Facilities Documentation will contain only the following financial covenant with regard to the Borrower and its Restricted Subsidiaries on a consolidated basis, solely for the benefit of the Revolving Lenders and solely when required as provided in the next paragraph: •Maintenance of a maximum First Lien Net Leverage Ratio of, initially, not more than 3.50 to 1.00, which ratio will step down to 3.25 to 1:00 for the fiscal quarter ending December 31, 2026 and thereafter (the “Financial Covenant”). The Financial Covenant will be tested as of the last day of each fiscal quarter commencing as of the last day of the fiscal quarter in which the Closing Date occurs (if otherwise applicable on such date). | ||||
Financial Definitions: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Events of Default: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Unrestricted Subsidiaries: | None. | ||||
Voting: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications); provided that any waiver, amendment, consent or modification that by its terms affects the rights or duties of Revolving Lenders holding Loans or Commitments of a particular Class of Revolving Loans or Commitments (but not the Revolving Lenders holding Loans or Commitments of any other Class of Revolving Loans or Commitments) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in interest of the affected Class of Revolving Lenders that would be required to consent if such Class of Revolving Lenders were the only Class of Revolving Lenders. | ||||
Cost and Yield Protection: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Assignments and Participations: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Expenses and Indemnification: | Substantially the same as under the Existing Credit Agreement (as modified to reflect the Agreed Modifications). | ||||
Governing Law and Forum: | New York. | ||||
| Counsel to Agent, Lead Arrangers and Revolving Lenders: | Cahill Gordon & Reindel LLP. | ||||
Interest Rates: | The interest rates for the New Revolving Facility will be at the option of the Borrower, Adjusted Term SOFR plus 5.50% or Base Rate plus 4.50%. | ||||||||||
| The Borrower may elect interest periods of 1, 3 or 6 months for Term SOFR (as defined in the Existing Credit Agreement) borrowings. | |||||||||||
| Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be), in the case of Base Rate loans and interest shall be payable at the end of each interest period and, in any event, at least every three months. | |||||||||||
Letter of Credit Fees: | Substantially the same as the Existing Credit Agreement). | ||||||||||
Commitment Fees: | Initially, 0.50% per annum. Beginning with the delivery of financial statements for the fiscal quarter in which the Closing Date occurs, the commitment fee shall be determined by reference to the following pricing grid: | ||||||||||
| Pricing Level | Senior Secured Net Leverage Ratio | Commitment Fee | |||||||||
| 1 | ≥ 2.70:1.00 | 0.50% | |||||||||
| 2 | < 2.70:1.00 but ≥ 2.20:1.00 | 0.40% | |||||||||
| 3 | < 2.20:1.00 but ≥ 1.20:1.00 | 0.35% | |||||||||
| 4 | < 1.20:1.00 | 0.30% | |||||||||
| Reference | Existing Scripps Credit Agreement | New Credit Agreement | |||||||||
| Indebtedness | |||||||||||
| 1. | “Indebtedness” (§1.1) | Various | Indebtedness deemed to also include outstanding amounts under any receivables, factoring or similar facilities or securitizations whether or not the same would constitute indebtedness or a liability on the balance sheet of such Person according to GAAP. | ||||||||
| 2. | Incremental Debt (§2.24(c)) Ratio Debt (§7.1(k)) | Freebie basket: $360 million Ratio basket: (i) Pari passu indebtedness permitted provided that First Lien Net Leverage Ratio is less than or equal to 4.00 to 1.00 on a pro forma basis (ii) Junior secured indebtedness permitted provided that Senior Secured Net Leverage Ratio is less than or equal to 5.50 to 1.00 (iii) Unsecured Indebtedness permitted provided that Total Net Leverage Ratio is less than or equal to 6.00 to 1.00 | Freebie basket: $50 million, subject to the following additional conditions: •Cannot be used to repay Junior Debt •Proceeds must be new money Debt incurred pursuant to freebie basket or the ratio basket all subject to the following additional conditions: •must be pari or junior in right of payment (and not senior). •terms and conditions (including obligors, collateral, affirmative and negative covenants and events of default but excluding interest margin and other economic terms) must not be more favorable to the lenders providing such debt than those applicable to the B2 and B3 Term Loans. •no earlier maturity date and no shorter WAL; junior debt must not have any amortization prior to the latest maturity date with respect to all Term Loans. •cannot be provided by Affiliates. •pari passu secured debt (in any form) subject to pricing MFN, including with respect to call protection. •must be subject to an agreed first lien intercreditor agreement. •shall not be guaranteed by any non-Loan Party. •shall not be secured by non-Collateral assets. | ||||||||
| Reference | Existing Scripps Credit Agreement | New Credit Agreement | |||||||||
•voluntary or mandatory prepayment of pari secured debt must be pro rata or less than pro rata with the Term Loans in the case of pari passu secured debt. Junior debt shall not require mandatory prepayments prior to the payment in full of the obligations in respect of the Term Loans in cash. •no Event of Default or Default. Ratio basket: (i) Pari passu indebtedness permitted provided that First Lien Gross Leverage Ratio is less than or equal to 2.00 to 1.00 on a pro forma basis (ii) Junior secured indebtedness permitted provided that Senior Secured Net Leverage Ratio is less than or equal to 4.50 to 1.00 (iii) Unsecured Indebtedness permitted provided that Total Net Leverage Ratio is less than or equal to 5.00 to 1.00 Revolver Class Vote to amend or waive. 6 | |||||||||||
| 3. | Capital Lease (§7.1(c)) | Greater of $55 million or 15% of Consolidated EBITDA | $55 million •existing $30 million cap leases with respect to the Denver facility to be grandfathered in pursuant to a schedule. •cannot be made in bulk as part of a committed facility, and must be for bona fide business purposes.7 | ||||||||
| 4. | Intercompany Indebtedness (§7.1(d)) | Unlimited among restricted group as long as permitted by the corresponding investment covenants. Indebtedness provided by Loan Party to non-Loan Party shall be subordinated in a manner reasonably acceptable to the Administrative Agent. | All debt of non-Loan Party to Loan Party shall be deemed an Investment and utilize capacity under §7.4(k). All intercompany Indebtedness owing from a Loan Party to a non-Loan Party must be subordinated in right of payment and unsecured. In addition, no Indebtedness incurred by any Subsidiary that is not a Loan Party, the proceeds of which are or are contemplated to be lent by such Subsidiary to any Loan Party may be Guaranteed by any Loan Party nor shall any Loan Party provide any other credit support in respect of such Indebtedness (the “Double-Dip Protection”). For the avoidance of doubt, Double-Dip Protection is to apply to all intercompany Indebtedness owing from the Borrower or a Loan Party to a non-Loan Party regardless of whether or not incurred under §7.1(d). Revolver Class Vote to amend or waive Double-Dip Protection (including those provisions covered by the prior sentence). Subordination of intercompany debt will be pursuant to terms of an intercompany subordination agreement satisfactory to the AHG. | ||||||||
| 5. | Non-Loan Party Cap (Permitted Acquisition Debt (§7.1(f)) / Ratio Debt (§7.1(k)) | Sub-cap on non-loan party of the greater of $55 million and 15% of Consolidated EBITDA (shared with non-loan party debt basket). | Eliminate Non-Loan Party ratio/acquisition debt concept. Revolver Class Vote required to restore any NLP capacity. | ||||||||
6. | Incurred / Assumed Acquisition Debt (§7.1(f)) | Uncapped Indebtedness incurred or assumed in connection with a Permitted Acquisition, as long as: •if pari passu, subject to pro forma First Lien Net Leverage Ratio at 4.0x, and MFN Protection if incurred in contemplation of the transaction, subject to First Lien Intercreditor Agreement; •if junior, subject to pro forma Senior Secured Net Leverage Ratio at 5.5x, subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent; •if unsecured, subject to pro forma Total Net Leverage Ratio at 6.0x; •if incurred by a non-Loan Party, subject to Non-Loan Party Cap. In each case, subject to: •no Event of Default; •no shorter Weighted Average Life to Maturity; •do not mature prior to the date that occurs 91 days following the Latest Maturity Date of any class of Term Loans; •no more restrictive or onerous terms; •delivery of a Responsible Officer’s certificate 5 Business Days ahead of incurrence of such indebtedness; •other than the Indebtedness incurred by non-Loan Party, shall not be guaranteed by any person other than the Guarantor; •shall not be secured by non-Collateral. | Uncapped Indebtedness incurred in connection with a Permitted Acquisition subject to the same ratios as Ratio Debt and such acquisition being for a bona fide business purpose. Incurred Indebtedness to be subject to restrictions set forth under “Incremental Debt” including the MFN Protections. Assumed Indebtedness capped at $55 million and must be non-recourse to the Collateral and not incurred in contemplated of the transaction but is not subject to restrictions set forth under “Incremental Debt” or the MFN Protections. Revolver Class Vote to amend or waive. | ||||||||
| 7. | Intercompany Guarantees (§7.1(g)) | Guarantees by Loan Party of non-Loan Party Indebtedness shall be subject to the corresponding investment covenants. | All intercompany guarantees shall be deemed to be an Investment and utilize capacity under §7.4(k). Revolver Class Vote to amend or waive | ||||||||
| 8. | General Debt (§7.1(l)) | Greater of $45 million or 12.5% of Consolidated EBITDA. | $45 million, subject to the following conditions: a.If incurred by a Loan Party, must be unsecured or if secured, secured by the Collateral and on a junior lien basis. b.Must be incurred for a bona fide business purpose and not for any other purpose. c.Cannot be provided by an Affiliate. d.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a)-(c). | ||||||||
| 9. | JV Debt Basket (§7.1(n)) | Greater of $25 million and 7.5% of Consolidated EBITDA. | $15 million. a.Must be a joint venture formed for a bona fide business purpose with a non-affiliate. Revolver Class Vote to amend or waive this element. b.No Event of Default or Default. | ||||||||
| 10. | Non-Loan Party Debt Basket (§7.1(o)) | Greater of $55 million and 15% of Consolidated EBITDA (shared with non-loan party sub-cap on acquisition ratio debt and general ratio debt) | $5 million a.Must be incurred for a bona fide business purpose and not for any other purpose. b.Cannot be provided by an Affiliate. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 11. | Contribution Debt, “Excluded Contributions” (§7.1(p), §1.1) | Not to exceed the 100% of the net cash proceeds from the issuance or sale of Qualified Equity Interest of the Borrower. | Eliminate concept and remove basket. | ||||||||
| 12. | Refinancing Term Loans, Replacement Revolving Facilities, Refinancing Notes (§7.1(s), 2.24(e), 2.24(g)) | Refinancing Term Loans: Borrower may establish one or more additional tranches of term loans under this Agreement to refinance in whole or in part any class of Term Loans, as long as: •conditions Precedents in §3.2 are satisfied; •no earlier maturity than the Term Loans being refinanced; •no shorter Weighted Average Life to Maturity than the Term Loans being refinanced; •principal amount not to exceed the outstanding amount of the Term Loans being refinanced plus fees, premiums, costs and expenses (including OID) and accrued interest); •terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than those applicable to the Term Loans being refinanced; •if pari passu, such refinancing indebtedness shall be subject to the First Lien Intercreditor Agreement; if junior, subject to a customary intercreditor agreement; and •shall not be guaranteed by non-Loan Party. Replacement Revolving Facilities and Refinancing Notes have similar conditions. | Refinancing debt to include the following modifications: a.can only be incurred as debt pari passu or junior in payment priority. b.cannot provide for greater than pro rata voluntary and mandatory prepayments. c.cannot be incurred to influence voting thresholds and exit consents shall be prohibited. d.shall not be secured by non-Collateral. e.proceeds must be new money and applied pro rata to all Lenders. f.subject to pricing MFN, including with respect to call protection. Refinancing notes must be subject to the same conditions listed above. Revolver Class Vote to amend or waive. | ||||||||
| 13. | Receivables/Securitization Facility | N/A | The terms governing the New Term Loans shall permit a Qualified Securitization Financing and Receivables Facility in an aggregate amount at any time up to $450 million. The Existing Credit Agreement shall be modified to permit such facilities, including by modifying the definition of “Permitted Investments”, the definition of “Permitted Liens”, the Indebtedness covenant (§7.1), the Restricted Payments covenant (§7.5), the Sale of Assets covenant (§7.6) and the Transactions with Affiliates covenant (§7.7) to permit transactions in connection with a Qualified Securitization Financing or a Receivables Facility. Commitments cannot exceed $450 million. Borrowings cannot exceed the greater of $450 million and the borrowing base. “Securitization Assets” cannot include real estate assets, mortgage receivables or related assets. Receivables and securitizations shall be limited solely to bona fide accounts receivables generated in the ordinary course of business and related assets customary for inclusion in receivables/securitization transactions. Any such facility shall have a right of first offer for any refinancing/replacement of such facility in whole, not in part; permitted refinancings (or any amendments) will prohibit make-wholes or call premiums in excess of 102. For the avoidance of doubt, this sentence is only binding upon the Borrower and not any lender under a Qualified Securitization Financing/Receivables Facility (and will not restrict such lender’s ability to assign). Revolver Class Vote to amend or waive. | ||||||||
| 14. | Revolver | Revolving credit facility to be subject to buyout option in favor of Term Loan Lenders exercisable at any time that will require purchase at par in cash of all, and not less than all, funded revolving loans and assumption of all unfunded commitments, accrued and unpaid interest and accrued and unpaid fees (including letter of credit participation fees), plus cash collateralizing all outstanding letters of credit. | |||||||||
| Liens | |||||||||||
| 15. | Leases and licenses (“Permitted Liens” (m)) | Leases, subleases, licenses or sublicenses on the property covered thereby, in each case, in the ordinary course of business which do not (i) materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole or (ii) secure any Indebtedness. | All carve-outs for licenses and sub-licenses must be for non-exclusive licenses and sub-licenses throughout the agreement. | ||||||||
| 16. | Non-Loan Party Liens (“Permitted Liens” (i)(i)) | Liens securing debt incurred by non-Loan Party as long as permitted by debt covenants. | To be permitted so long as secured solely by assets of a non-Loan Party, but can only be utilized in connection with debt incurred pursuant to §7.1(o) and §7.1(n). Revolver Class Vote to amend non-Loan Party assets limitations. | ||||||||
| 17. | Lien on Unrestricted Subsidiary (“Permitted Liens” (p)) | Lien on assets or equity interests of Unrestricted Subsidiary that secures non-recourse debt of Unrestricted Subsidiary. | Remove basket. | ||||||||
| 18. | General Liens (§7.2(f)) | Greater of $45 million or 12.5% of Consolidated EBITDA. | $45 million. If secured on Collateral, must be junior in priority. Revolver Class Vote to amend junior priority requirement. | ||||||||
| Investments | |||||||||||
| 19. | Investment permitted by Disposition covenant (§7.4(d)) | Uncapped Investments constituting non-cash proceeds as long as permitted by §7.6. | Limited to transactions with an unaffiliated third party for bona fide business purposes. Revolver Class Vote to amend or waive. | ||||||||
| 20. | General Investments (§7.4(e)) | Greater of $120 million or 33% of Consolidated EBITDA, subject to no Event of Default. | $40 million. a.Must be for a bona fide business purpose. b.Cannot be used for investments in non-Loan Parties other than for JVs for bona fide business purposes. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b) above. | ||||||||
| 21. | Ratio Investments Basket (§7.4(f)) | Cannot exceed 4.00x Total Net Leverage Ratio, subject to no Default or EoD and delivery of compliance certificate. | 3.25x Total Net Leverage Ratio a.Must be for a bona fide business purpose. b.Cannot be used for investments in non-Loan Parties other than for JVs for bona fide business purposes. c.No Event of Default or Default. d.Compliance certificate Revolver Class Vote to amend or waive clauses (a) and (b) above. | ||||||||
| 22. | Loans and Advances to Employees and D&Os (§7.4(g)(i)) | $15 million | $5 million | ||||||||
| 23. | Available Amount Basket (§7.4(i)) | Up to the Available Amount so long as the Available Amount Conditions are satisfied (no EoD and Total Net Leverage Ratio does not exceed 5.0x). Available Amount can be used for Investment and Restricted Payments (which includes Restricted Debt Payments), in an amount equal to the sum of: •$135 million plus •the Cumulative Retained Excess Cash Flow Amount plus •returns in cash on Investments made utilizing the Available Amount plus •FMV of Investments in Unrestricted Subs that are redesignated Restricted Subs plus •the amount of all Net Proceeds From Equity Issuance plus •Retained Declines Proceeds plus •$195 million minus •any usage of the Available Amount baskets for Investments or RPs | Starter basket for RPs consisting of preferred dividends of $75 million, subject to a 4.25x TNLR. RPs consisting of preferred dividends using Available Amount will be permitted starting in FY 2027 if (1) less than $50mm of 2027 SUNs remain outstanding and (2) ECF YTD pro forma for pref dividend is positive. Starter basket for all other purposes of $0. •If incurred for other RPs, subject to 3.0x TNLR. •If incurred for Investments, subject to 3.75x TNLR. Retained ECF in all cases resets to $0. Revolver Class Vote to amend or waive. | ||||||||
| 24. | Investments in Restricted Subs that are Non-Loan Parties (§7.4(k)) | Greater of $25 million and 7.5% of Consolidated EBITDA. | $5 million a.Must be for a bona fide business purpose. b.No Event of Default or Default. Revolver Class Vote to amend or waive clause (a). | ||||||||
| 25. | Investments in JVs (§7.4(m)) | Greater of $25 million and 7.5% of Consolidated EBITDA | $25 million. a.Must be for a bona fide business purpose. b.Must be a bona fide joint venture formed for a bona fide business purpose with an unaffiliated third party. c.No Event of Default or Default. Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 26. | Investments in Unrestricted Subs (§7.4(n)) | Greater of $25 million and 7.5% of Consolidated EBITDA | Remove basket. Revolver Class Vote to reinstate. | ||||||||
| 27. | Others (§7.4) | N/A | Investments to expressly include any capital contribution. Investment capacity shall not be “replenished” above the original cost of such investment and in any event (i) no netting for returns if made in contemplation of such return or (ii) the return on the investment occurs substantially concurrently with the investment. Revolver Class Vote to amend or waive. | ||||||||
| Fundamental Changes and Permitted Acquisition | |||||||||||
| 28. | Fundamental Changes (§7.3(a)) | Restricted Subsidiary may merge with and into an Unrestricted Subsidiary. Restricted Subsidiary may liquidate or dissolve if determined in good faith is in in the best interest of the Borrower. | Remove. In the event of a liquidation or dissolution of a Loan Party, the assets of such Loan Party must be transferred to another Loan Party. Revolver Class Vote to amend requirement that Loan Party assets be transferred to another Loan Party. | ||||||||
| 29. | Permitted Acquisition (§7.3(b)) | Uncapped if the following conditions are satisfied: •Assets/business acquired shall be in similar, related, ancillary or complementary business or lines of business with the Restricted Group; •Borrower is able to incur at least $1 of additional debt under the ratio debt carveout after giving effect to such acquisition; •acquired Equity Interests shall be pledged; •acquisition consummated on a non-hostile basis and approved by the target’s board; •business and assets acquired shall be free and clear of all Liens; •10 Business Days’ prior written notice to Administrative Agent if acquisition consideration exceeds $100 million; •no Default or Event of Default. | Same, except: a.Any acquisition of a Person or assets must become a Loan Party or be pledged as Collateral. b.Total Net Leverage Ratio, pro forma, shall be no worse than such ratio prior to the consummation of the acquisition. Revolver Class Vote to amend or waive clause (a). | ||||||||
| Restricted Payments | |||||||||||
| 30. | Intercompany Restricted Payments (§7.5(a)) | Uncapped payment of cash or dividends from Restricted Group to Loan Parties. | To expressly provide that no Restricted Payments by a Loan Party to a non-Loan Party is permitted. Revolver Class Vote to amend or waive express prohibition on RPs from Loan Party to non-Loan Party. | ||||||||
| 31. | General RP Basket (§7.5(b)(2)(i)) | Greater of $95 million and 25% of Consolidated EBITDA | $10 million. Cannot be used to repay Junior Debt at any time. Cannot be used for payments in respect of preferred equity. Revolver Class Vote to amend or waive. | ||||||||
| 32. | General RP Ratio Basket (§7.5(b)(2)(ii)) | Cannot exceed 3.25x Total Net Leverage Ratio, subject to no EoD and delivery of compliance certificate | Cannot exceed 2.50x Total Net Leverage Ratio, subject to no EoD and delivery of compliance certificate. Revolver Class Vote to amend or waive. | ||||||||
| 33. | Available Amount Basket (§7.5(d)) | Up to the Available Amount so long as the Available Amount Conditions are satisfied (no EoD and Total Net Leverage Ratio does not exceed 5.0x) | See #22 above. | ||||||||
| 34. | Dividends on Borrower’s common stock (§7.5(e)) | Cannot exceed $50 million in any fiscal year and unused amounts may be carried forward to subsequent fiscal years in an aggregate amount not to exceed 25% of the permitted cumulative amount | $5 million per fiscal year (with carry-forward permitted). | ||||||||
| 35. | Cumulative Retained Excess Cash Flow Amount | An amount determined on a cumulative basis equal to the aggregate sum of the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods | See Excess Cash Flow sweep below. | ||||||||
| 36. | Refinance of the 2027 Unsecured Notes and 2031 Unsecured Notes | N/A | 2027 Unsecured Notes and 2031 Unsecured Notes can be refinanced or repurchased by the proceeds from debt incurred pursuant to the Ratio Debt basket as described above through the maturity of the 2027 Unsecured Notes. Revolver Class Vote to amend or waive. | ||||||||
| 37. | Restrictions on payment in respect of the 2027 Unsecured Notes | N/A | Principal payments in respect of the 2027 Unsecured Notes shall not be permitted to be made with proceeds from the A/R Securitization Facility or borrowings under the New Revolving Facility or non-extending revolving facility. Revolver Class Vote to amend or waive. | ||||||||
| Asset Sales | |||||||||||
| 38. | Sale of obsolete or worn out property in ordinary course (§7.6(a)) | Uncapped sale or other disposition for fair market value of obsolete or worn out property or other property not necessary for operations | Limited to obsolete or worn out assets and other immaterial property. | ||||||||
| 39. | Asset Sale / Event of Loss Sweep (§2.12(c), 2.12(d)) | 100% of Net Cash Proceeds of Disposition by Loan Parties (individual or aggregate) and Event of Loss, in each case, in excess of $25 million, subject to reinvestment provisions (1 year plus 180 days if contractual obligations to reinvest arose during the 1 year, in each case, subject to no Event of Default). •Not limited to sale of Collateral. •Proceeds from the following Dispositions are excluded from sweep: •Disposition of obsolete or worn-out property in ordinary course of business at FMV. •Sale or disposition of products, services, receivables, and Permitted Investment, or licensing or sub-licensing of IP or other property in ordinary course of business and not interferes with the business of the Borrower and Restricted Subsidiaries; •Disposition with an FMV per year $50 million per fiscal year. Mandatory prepayments from asset sale proceeds are applied pro rata across term loan tranches. | a.Mandatory prepayments from asset sale proceeds shall be applied 70% to prepay the New Tranche B-2 Term Loan Facility on a pro rata basis and 30% to prepay the New Tranche B-3 Term Loan Facility on a pro rata basis, until the New Term Loans are repaid in full. b.$5 million per annum de minimis threshold. c.(i) Reinvestment within 1 year up to $50 million per annum subject to no EoD, shared with reinvestment right in replacement facilities with proceeds of permitted sale leasebacks described in the Sale/Leaseback below. (ii) If assets sold are Collateral, such proceeds must be reinvested in Collateral; if assets are sold by Loan Party, proceeds must be reinvested in a Loan Party. Revolver Class Vote to amend or waive this clause (c)(ii). d.Asset sale sweep and Event of Loss sweep apply to Disposition/loss by all Subsidiaries, not only Loan Parties. e.Notwithstanding the foregoing, all net cash proceeds received from the sale of Bounce or real estate portfolio must be used to pay down the Term Loans (with no reinvestment rights). | ||||||||
| 40. | Disposition of products in ordinary course (§7.6(b)) | Uncapped as long as in the ordinary course of business and consistent with past practice. | Limited to non-exclusive licensing or sub-licensing. | ||||||||
| 41. | Sale/Leaseback (§7.6(c), §7.9) | Subject to asset sale sweep, any Sale/Leaseback permitted by §7.9. Uncapped Sale/Leaseback Transaction of fixed or capital assets, plus an additional $40 million, subject to asset sale sweep and no Event of Default. | Unlimited sale-leasebacks (subject to the J.Crew blocker for the avoidance of doubt) made for 100% cash consideration and not less than FMV and 120 day requirement for fixed/capital assets, so long as 100% of proceeds used to repay Term Loans, subject to the right to reinvest within 365 days in a replacement facility of up to $50M per annum shared with the reinvestment right in respect of other asset sales. | ||||||||
| 42. | Disposition of radio assets (§7.6(e)) | Uncapped sale of radio assets or equity of a Restricted Subsidiary the asset of which are substantially all radio assets, subject to asset sale sweep and no Event of Default. | Remove basket. | ||||||||
| 43. | Exchange of television broadcast station or radio station or of long-term station operating assets or cash or any digital business (§7.6(g)) | Uncapped exchange for cash, Permitted Investments or Station operating assets or digital business operating assets, as along as (i) no Event of Default; (ii) for fair market value; (iii) maximum 35% cash consideration paid / received by Loan Parties; and (iv) delivery of 5 Business Day prior written notice to the Administrative Agent and other information required by Administrative Agent. | All cash proceeds subject to sweep. Must be for bona fide business purposes. | ||||||||
| 44. | General Asset Sale Basket (§7.6(h)) | Asset sales permitted at FMV and at least 75% cash proceeds or Permitted Investments (with designated non-cash consideration deemed to be cash consideration up to greater of $100 million and 2% of Consolidated Total Assets, shared with basket for non-cash consideration from sale of TV broadcast stations), subject to no EoD | 75% cash consideration. Designated non-cash consideration: $5 million. a.Must be for a bona fide business purposes. b.Cannot be used to sell all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole). Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 45. | Disposition of television broadcast station or long-term station operating assets or of any digital business (§ 7.6(i)) | Uncapped, so long as (i) for fair market value, (ii) 75% proceeds consist of cash or Permitted Investment; (iii) no Event of Default, and (iv) written notice to the Administrative Agent 5 Business Day ahead of the disposition, with additional information that the Administrative Agent may require. Designated non-cash consideration: $100 million or 2.0% of Consolidated Total Assets, shared with the general basket under §7.6(h). | Designated non-cash consideration to be $5 million. a.Must be for a bona fide business purpose b.Cannot be used to sell all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole). Revolver Class Vote to amend or waive clauses (a) and (b). | ||||||||
| 46. | FCC Auction sale (§7.6(j)) | Uncapped Disposition of equipment, spectrum usage rights, broadcast licenses, or related assets in connection with any spectrum reallocation resulting from the FCC’s incentive auction of TB broadcast spectrum pursuant to 47 U.S.C. §1452(b)(4)(A). | Must be for fair market value and bona fide business purposes. Proceeds shall be subject to Asset Sale Sweep. | ||||||||
| 47. | Additional De Minimis Asset Sale Basket (§7.6(k)) | Aggregate fair market value cannot exceed $50 million in any fiscal year | $10 million in any fiscal year. If used for sale of Bounce or sale of real estate assets, proceeds shall be subject to Asset Sale Sweep. | ||||||||
| 48. | Others | N/A | No disposition of Equity of Loan Party to non-Loan Party and any permitted disposition will be deemed to be an Investment and utilize capacity under §7.4(k). Revolver Class Vote to amend or waive. | ||||||||
| Other basket related items | |||||||||||
| 49. | Available Amount | Means an amount equal to the sum of: •$135 million plus •the Cumulative Retained Excess Cash Flow Amount plus •returns in cash on Investments made utilizing the Available Amount plus •FMV of Investments in Unrestricted Subs that are redesignated Restricted Subs plus •the amount of all Net Proceeds From Equity Issuance plus •Retained Declines Proceeds plus •$195 million minus •any usage of the Available Amount baskets for Investments or RPs | See #22 above. | ||||||||
| 50. | Growers | Various baskets equal to the greater of a dollar amount and percentage of EBITDA or Consolidated Total Assets. | Eliminate EBITDA and Assets growers. | ||||||||
| Financial Terms | |||||||||||
| 51. | Consolidated EBITDA | Add-backs include: •Uncapped fees, expenses, charges or losses related to any issuance of Equity Interests, investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness (whether or not successful), and modifications •All extraordinary, unusual or non-recurring expenses, losses or items •All non-recurring cash expenses for business optimization expenses and other restructuring charges •Pro forma run rate cost savings, operating expense reductions and synergies – 25% Consolidated EBITDA cap 12 month look-forward period •Comcast Retransmission Adjustment | To be the same as existing except: (i) all references to “synergies” clause (iii) shall be replaced with a reference to “cost synergies”; (ii) the reference to “24 months” in clause (iii)(y) shall be changed to “12 months”; (iii) pro forma cost-saving add-backs, Regulation S-X add-backs, non-recurring cash add-backs and extraordinary losses exclusion in CNI capped at 20% in the aggregate.; and (iv) clause (iv) shall be deleted. Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 52. | Consolidated Total Debt | Does not include a carveout for “all obligations under any Qualified Securitization Financing or Receivables Facility”. | To expressly carveout “all obligations under any Qualified Securitization Financing or Receivables Facility”. Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 53. | Cash Netting | Uncapped | $50 million Revolver Class Vote as it relates to the financial covenant. | ||||||||
| 54. | Excess Cash Flow | Consolidated EBITDA plus decrease in Working Capital minus various deductions including: •Taxes paid in cash; •Interest paid in cash; •Principal debt repayments; •Cash spent on acquisition, investments and dividends; •Certain capital expenditures; •Net increases in Working Capital; •Cash spent on contractual obligations not completed yet but planned for the near term. | Exclude §7.4(k) as a deduct. | ||||||||
| 55. | Excess Cash Flow sweep (§2.12(e) and the definition of “Required Percentage”) | With respect to an Excess Cash Flow Period, the Borrower shall apply 50% of Excess Cash Flow to the prepayment of Term Loans, with step-downs to 25% and 0% at a First Lien Net Leverage Ratio of less than or equal to 3.50 to 1.00 and 3.00 to 1.00, respectively. The Cumulative Retained Excess Cash Flow Amount builds the Available Amount, which is subject to a leverage test and no Event of Default. | (i)With respect to the first $100 million of Excess Cash Flow, 100% of such Excess Cash Flow shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; (ii)With respect to the next $100 million of Excess Cash Flow, 65% of such Excess Cash Flow shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; (iii)With respect to any amount above $200 million of Excess Cash Flow, 50% shall prepay the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; in each case, on a pro rata basis between the New Tranche B-2 Term Loans and the New Tranche B-3 Term Loans; provided that for the fiscal year ending December 31, 2026 only, the first $50 million of Excess Cash Flow shall be paid to the New Tranche B-3 Term Loans. The portion of Excess Cash Flow not required to prepay the New Term Loans (the “Cumulative Retained Excess Cash Flow Amount”) shall (i) build the Available Amount and (ii) separately build capacity to prepay or redeem the 2027 Unsecured Notes or other junior indebtedness (including any refinancings of the 2027 Unsecured Notes or other junior indebtedness) (the “Junior Debt ECF Basket”), in each case from the new closing date. For the avoidance of doubt, usage of the Junior Debt ECF Basket shall not be subject to a leverage test or default blocker. Any usage of such Cumulative Retained Excess Cash Flow Amount under the Available Amount shall reduce availability under the Junior Debt ECF Basket and any usage of such Cumulative Retained Excess Cash Flow amount under the Junior Debt ECF Basket shall reduce availability under the Available Amount. Declined Junior Debt ECF to be offered to Term Loans on pro rata basis before they can be used to build RP basket capacity for preferred dividends. ECF declined by Term Loan Lenders may be used to repay junior debt or make preferred dividends. | ||||||||
| Definitions | |||||||||||
| 56. | “Unrestricted Subsidiary” | Ability to create Unrestricted Subsidiaries. | Eliminate “Unrestricted Subsidiaries” concept globally. See row 64, clause 4(e) below. | ||||||||
| 57. | “Material Subsidiary” | 5.0% of the total assets or 5% of revenues or net income of the Borrower and its Subsidiaries. | 2.5% of the total assets or 2.5% of revenues or net income individually or in the aggregate, of the Borrower and its Subsidiaries. | ||||||||
| 58. | “Immaterial Subsidiary” | N/A | Any direct or indirect Subsidiary of the Borrower that is not a Material Subsidiary. | ||||||||
| 59. | “Obligations” | Various | To include all prepayment premium and expressly refer to the indemnity under §10.3. | ||||||||
| 60. | “Material Indebtedness” | (b) Indebtedness (other than the Loans and Letters of Credit) of the Borrower or any of its Restricted Subsidiaries, individually or in an aggregate committed or outstanding amount exceeding $50,000,000. | $25 million. | ||||||||
| Miscellaneous | |||||||||||
| 61. | Articles III, IV and V | Various | Articles III, IV and V subject to specialist comments to be mutually agreed in connection with definitive documentation to reflect customary provisions for credit agreements of this nature. | ||||||||
| 62. | Waivers and Amendment (§7.15) | No amendment or waiver with respect to Organizational Documents that would be materially adverse to the Lenders. No amendment, modification or waiver with respect to the terms of any Junior Debt unless no Material Adverse Effect. | No modification, amendment or waiver to Junior Debt documents if materially adverse to Lenders. Modifications that are deemed to be materially adverse to the interests of the Lenders to include, without limitation: (i) the inclusion of a financial maintenance covenant, (ii) the imposition of additional mandatory prepayment obligations, (iii) amendments that shorten the scheduled final maturity or shorten the weighted average life to maturity of the applicable Indebtedness, (iv) restrictions on the ability of the Borrower or any Guarantor to make payments under the loan documents or (v) amendments to the level of cash interest payments. | ||||||||
| 63. | Event of Default (Article VIII) | Various Cross-default threshold of $50 million | The “Restricted Material Subsidiaries” in §8.1(h), §8.1(i) and §8.1(j) to be changed to “the Borrower or any Subsidiary other than Immaterial Subsidiaries”. Cross-default threshold of $25 million. | ||||||||
| 64. | “Chewy” Blocker (§9.9) | None. Guarantor shall be released if ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Loan Documents. | No Guarantor shall be released from its obligations under its Guaranty unless each of the following conditions are satisfied: a.no Default or Event of Default shall have occurred and be continuing. b.Guarantor ceases to be a Subsidiary. c.the primary purpose of the transaction resulting in such release must be for a bona fide business purpose in a transaction on an arm’s length basis with an unaffiliated third party, and not to evade the obligations under the applicable Guaranty. d.at the time of such release (after giving effect thereto), all outstanding debt of, and investments in, such Guarantor would then be permitted to be made under in accordance with the relevant provisions of the debt and investment covenants (without relying on capacity provided for in §7.4(d)). e.such Subsidiary shall not be (or shall be simultaneously released as) a guarantor under other funded debt. | ||||||||
| 65. | Amendments (§10.2(b)) | Various | 1. Consent of each affected Term Lender is required for changes to §2.12(g). Required Lender vote for changes to mandatory prepayment provisions (subject to the reinvestment right in Loan Parties as covered below). 2. Consent of all Lenders for changes to §2.21(c) or any other provision on pro rata treatment and application of proceeds. 3. Consent of all affected lenders for changes to §2.28(a) and §2.29 with respect to the requirement to offer to the applicable lenders. 4. All Lender vote for the following amendments; provided that if the transaction is offered to all lenders on the same terms (including any consent fee, all backstop fees (except as provided below) and all other economics and structural and other protections to be included but excluding bona fide good faith market backstop fees) at the same time based on their pro rata share of outstanding loans and commitments (after giving effect to any pro rata reductions of commitments as part of the transactions), then 66.67% vote plus Revolver Class Vote; a.Chewy Blocker b.J. Crew Blocker c.Double Dip Protection d.changes to §10.4(b)(v) e.permitting to exist or designate any subsidiary as an “unrestricted subsidiary” or changes to “Subsidiary” to permit the existence of an entity outside of the covenants f.LME Covenant (including definition of “Liability Management Transaction” and application of the term “Liability Management Transaction” in Credit Documents) g.Incora blocker h.Pluralsight blocker (subject to review and agreement on the appropriate language) | ||||||||
| 5. Affected lender vote to: a. postpone, or have the effect of postponing, any date scheduled for the payment of principal interest, premiums, fees or any other amount (including by making any payment payable in kind rather than in cash); b. change, or have the effect of changing, the type or currency of any payment; c. extend, or have the effect of extending or adding, any grace period relating to, any payment of principal of, or interest on, any Loans, or any fees or other amounts payable for more than 10 Business Days (provided; however, the 10 Business Day period shall not apply to payment of principal); Required Lenders cannot waive any EoD related to a transaction violates RC-specific class voting provisions, which transaction shall be void ab initio. In addition, the right of any lender to bring suit for the enforcement of any payment of principal of, and premium (if any) or interest on, any loan on or after the maturity date applicable thereto shall not be impaired or affected without the consent of such lender. 6. §10.2(b)(x) will be changed to also apply to each Term Loan class separately and §10.2(b)(ix) for the Revolving Lenders should be changed in a similar manner to also apply to each Revolving Loan class separately. 7. Revolver Class Vote to (x) amend or waive any provision of any existing ICA or enter into a new ICA or (y) amend or waive any waterfall or remedial provisions in any Security Document that adversely and disproportionately affects the rights, remedies and/or pro rata treatment of the Revolver. 8. Amendments to §2.27 will include any other similar provision in any Loan Document. 9. All lender vote amend, modify or waive any definition to the extent applicable to any of the sacred rights provisions to the extent such amendment, modification or waiver would have the effect of any of the amendments, modifications or waivers that are limited by such clauses (except in connection with a transaction that satisfies the requirement to offer to all lenders, in which case the voting standards applicable thereto will apply (66.67% plus Revolver Class Vote). | |||||||||||
| 10. Add express reference to “Required Revolving Lenders” (or similar term) to §10.2(b)(v). 11. Maintain existing revolver protections with respect to the financial covenant §10.2(b)(x)) (second sentence). 12. Revolver Class Vote shall be required to waive any condition to any Credit Extension of Revolving Loans (including the waiver of any Default or Event of Default the absence of which would be a condition to any Credit Extension of Revolving Loans). 13. Collateral/Guarantee Matters: All lender vote to amend the guarantor coverage test or release all or a material portion of the collateral or value of the guarantees; otherwise, any amendments that strip or release Collateral or amendments to the perfection requirements or Excluded Property or the requirement for DACAs require the consent of the Required Lenders plus the Revolver Class Vote. Otherwise no changes from Existing Credit Agreement. | |||||||||||
| 66. | Anti-Serta Protection (§10.2(b)(vii)) | (vii) permit or allow any sale or release of, or the subordination of the Administrative Agent’s Lien in, all or substantially all of the Collateral except in conjunction with sales, transfers or releases of Collateral permitted hereunder, including §9.9, without the written consent of each Lender | All lender consent vote for lien or payment subordination with respect to, or sale or release of, all or a material portion of the Collateral or the value of the guarantees; provided that if the transaction is offered to all lenders on the same terms (including any consent fee, all backstop fees and all other economics and structural and other protections to be included but excluding bona fide good faith market backstop fees) at the same time based on their pro rata share of the outstanding loans and commitments (after giving effect to any pro rata reductions of commitments as part of the transactions), then 66.67% vote plus Revolver Class Vote. Required Lender vote (no class voting) in connection with a DIP financing offered to all lenders on the same terms and conditions (including backstop fees, premiums and expenses, and all other economics and structural and other protections). | ||||||||
| 67. | Enter Consents | N/A | Disallow incurrence and/or reduction of obligations/commitments with the purpose to influence voting unless consented to by all affected Lenders. | ||||||||
| 68. | Expenses; indemnification (§10.3) | Various | Indemnification to cover transactions under the TSA and the Revolver Commitment Letter and both included as part of the secured obligations. | ||||||||
| 69. | Schedules | Various | All schedules to be reasonably satisfactory to the AHG. | ||||||||
| 70. | Limited Conditionality Acquisitions (§1.5) | Various | Remove and eliminate “Limited Conditionality Acquisitions” concept globally. | ||||||||
| 71. | Taurus Acquisition related terms, Cordillera Acquisition related terms | Various | Remove and eliminate such concepts globally. | ||||||||
| 72. | LME provisions | N/A | Neither the Borrower nor any of its respective Subsidiaries shall directly or indirectly, (i) create, incur, assume or otherwise become or remain liable with respect to any Indebtedness or issue any Equity Interests, (ii) create, incur, assume or permit or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits therefrom, (iii) make or own any Investment in any other Person, (iv) enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution) or (v) convey, sell, lease or otherwise dispose of all or any part of its property or assets or to otherwise engage in any other activity, in each case, that is undertaken in connection with a Liability Management Transaction.8 | ||||||||
| 73. | J. Crew Blocker | N/A | (a) the Borrower shall not, nor shall it permit any Subsidiary to, transfer (whether as an Investment, Restricted Payment, Disposition or otherwise) in any respect, whether directly or indirectly or by one or more transactions (including pursuant to the release of any guaranty provided by any Loan Party or the transfer of equity of a Person that owns material Intellectual Property or otherwise transfer legal or beneficial ownership of, or an exclusive license to, any material intellectual property) any material intellectual property or any other material property or material asset to (x) any Subsidiary that is not a Subsidiary Loan Party, (y) any other Affiliate of the Borrower that is not a Loan Party or (z) any joint venture entity, (b) (i) no Subsidiary that is not a Subsidiary Loan Party, (ii) no other Affiliate of the Borrower that is not a Loan Party and (iii) no joint venture entity shall own or hold an exclusive license to any material intellectual property or any other material property or material asset at any time and (c) no Loan Party that owns or holds any material intellectual property or any other material property or material asset shall be permitted to become a non-Loan Party (it being understood that any dispositions, transfers or licenses or transactions made in contravention of this provision shall be void ab initio). To the extent that any ownership of any material intellectual property vests in a Subsidiary or any other Affiliate of the Borrower that is not a Loan Party or any joint venture entity, such Subsidiary, Affiliate or joint venture shall, as promptly as reasonably practicable, assign such ownership of such material intellectual property to a Loan Party or be designated as a Loan Party. With respect to joint ventures, shall not be construed to prohibit any investment made in compliance with §7.4(e), (k) and (m). FCC Licenses and spectrum to be expressly included under the definition of “material Intellectual Property”. For the avoidance of doubt, this restriction shall not apply to the sale, transfer or disposition of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets in connection with a permitted receivables facilities or qualified securitization facility. | ||||||||
| 74. | Guarantor Coverage Test (§5.12, “Aggregate Subsidiary Threshold”) | At least 90% of total consolidated revenue and 90% of Consolidated Total Assets of the restricted group must provide credit support for the Obligations under the Credit Agreement. Excluded Foreign Subsidiaries “Aggregate Subsidiary Threshold” shall mean an amount equal to ninety percent (90%) of the total consolidated revenue of the Borrower and its Restricted Subsidiaries for the most recent fiscal period as shown on the income statement of the Borrower most recently delivered pursuant to §5.1(a) or (b), as applicable, and ninety (90%) of the Consolidated Total Assets; provided, that, for purposes of determining the Aggregate Subsidiary Threshold as of the Closing Date, such determination shall be based on the pro forma balance sheet and related pro forma consolidated statement of income of the Borrower and its Restricted Subsidiaries provided to the Administrative Agent pursuant to §3.1(xiv). | 95% | ||||||||
| 75. | Excluded Equity Interest (§1 of Security Agreement) | Equity Interests of any Foreign Subsidiary to the extent such Equity Interest exceeds 65% of the voting power of all classes of Equity Interests of such Foreign Subsidiary entitled with vote. | OK to remove so long as no tax consequences for such Foreign Subsidiary. | ||||||||
| 76. | Account Control Agreement (§5.11 of Credit Agreement and §5(e) of Security Agreement) | Deliver Blocked Account Agreements within 5 Business Day upon opening any Deposit Accounts or Investment Accounts and Collateral Related Accounts. | DACAs required subject to customary carveouts and de minimis threshold (we would expect to have DACAs over existing accounts but we will need to conduct diligence on the company’s bank accounts to ensure that all material accounts are covered for the benefit of the lenders). | ||||||||
| 77. | “Excluded Property” (Defined in Security Agreement) | "Excluded Property" means, collectively, (i) any permit, lease, license, contract, instrument, Equity Interest or other agreement held by any Grantor that prohibits, or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation by such Grantor of a Lien thereon and such consent has not been obtained, or any permit, lease, license contract or other agreement held by any Grantor to the extent that any Requirement of Law prohibits the creation of a Lien thereon, but only, in each case, to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (ii) any "intent to use" Trademark applications for which a statement of use has not been filed (but only until such statement is filed), (iii) any Deposit Account exclusively used for all or any of payroll, benefits, taxes, escrow, customs, insurance impress accounts or other fiduciary purposes, (iv) Equipment owned by any Grantor that is subject to a Lien securing a purchase money obligation or Capital Lease Obligation to the extent permitted under the Credit Agreement if the contract or other agreement in which such Lien is granted (or in the documentation providing for such Capital Lease) prohibits or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation of any other Lien on such Equipment and such consent has not been obtained, and (v) any FCC License; provided, however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above (unless such Proceeds, substitutions or replacements would constitute "Excluded Property" as defined above) provided, further, that if and when (1) the granting of such security interest is not so prohibited, or (2) upon the consent of any holder of a Lien of the type described in clause (i) or (iv) above, the Administrative Agent will be deemed to have, and at all times to have had, a Security Interest in such Excluded Property. | “Excluded Property” means, collectively, (i) any permit, lease, license, contract, instrument, Equity Interest or other agreement held by any Grantor that prohibits, or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation by such Grantor of a Lien thereon and such consent has not been obtained, or any permit, lease, license contract or other agreement held by any Grantor to the extent that any Requirement of Law prohibits the creation of a Lien thereon, but only, in each case, to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (ii) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed), (iii) any Deposit Account exclusively used for all or any of payroll, benefits, taxes, escrow, customs, insurance impress accounts or other fiduciary purposes, (iv) Equipment owned by any Grantor that is subject to a Lien securing a purchase money obligation or Capital Lease Obligation to the extent permitted under the Credit Agreement if the contract or other agreement in which such Lien is granted (or in the documentation providing for such Capital Lease) prohibits or requires the consent of any Person other than a Grantor or any Affiliate thereof as a condition to the creation of any other Lien on such Equipment and such consent has not been obtained, in each case after giving effect to the anti-assignment provisions in the UCC or other applicable law, and (v) any FCC License to the extent (but only to the extent) that at such time the Collateral Agent may not validly possess a security interest therein pursuant to applicable Communications Laws, but the Collateral shall include, to the maximum extent permitted by law, all rights incident or appurtenant to the FCC License, the economic value of the FCC License, and the right to receive all proceeds derived from or in connection with the direct or indirect sale, assignment or transfer of the FCC License; provided that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above (unless such Proceeds, substitutions or replacements would constitute “Excluded Property” as defined above) provided, further, that if and when (1) the granting of such security interest is not so prohibited, or (2) upon the consent of any holder of a Lien of the type described in clause (i) or (iv) above, the Administrative Agent will be deemed to have, and at all times to have had, a Security Interest in such Excluded Property; provided, further, that, no asset or property shall constitute Excluded Property if such asset or property secures any Indebtedness that is secured on a pari passu basis with the Liens securing the Obligations or any Junior Debt (or any refinancings or successive refinancings in respect each of the foregoing). | ||||||||
| 78. | “Subsidiary” | “Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower. Notwithstanding the foregoing (except as used in the definition of Unrestricted Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its respective Subsidiaries for purposes of this Agreement or any other Loan Document, and the financial statements and consolidation of accounts of the Borrower and its Restricted Subsidiaries shall not, for purposes of this Agreement, be consolidated with any Unrestricted Subsidiary. | If the Borrower or any of its respective Subsidiaries owns or controls any equity interest of any Person and such ownership or control does not satisfy the requirements set forth in clauses (i) or (ii) above, such Person shall be deemed to be a “Subsidiary” hereunder unless such ownership or control is for legitimate business purposes and not for the purpose of effectuating any Liability Management Transactions. | ||||||||
| 79. | Others | N/A | Subject to further discussion with securitization providers, lenders to have a first lien on the equity of a newly formed SPV that is the direct or indirect parent of the A/R SPV Borrower (but not the A/R SPV Borrower) and will be subject to a non-disturbance/standstill agreement in favor of the securitization providers. | ||||||||
The Credit Agreement Amendment, in respect of the Credit Agreement Exchange Offer & Amendment, will: (1) eliminate substantially all of the conditions precedents and related provisions in the Existing Credit Agreement, including the following conditions precedents: • Section 3.1 Conditions To Effectiveness; • Section 3.2 Each Credit Event; • Section 3.3 Delivery of Documents; • Section 3.4 Effect of Amendment and Restatement. (2) eliminate substantially all of the representations and warranties and related provisions in the Existing Credit Agreement, including the following representations and warranties: • Section 4.1 (Existence, Power); • Section 4.2 (Organizational Power; Authorization); • Section 4.3 (Capital Stock and Related Matters); • Section 4.4 (Governmental Approvals; No Conflicts); • Section 4.5 (Financial Statements); • Section 4.6 (Liabilities, Litigation and Environmental Matters); • Section 4.7 (Compliance with Laws and Agreements); • Section 4.8 (Material Contracts); • Section 4.9 (Investment Company Act, Etc.); • Section 4.10 (Taxes); • Section 4.11 (Margin Regulations); • Section 4.12 (ERISA); • Section 4.13 (Ownership of Property; Intellectual Property); • Section 4.14 (Disclosure); • Section 4.15 (Labor Relations); • Section 4.16 (Subsidiaries and Joint Ventures); • Section 4.17 (Solvency); • Section 4.18 (EEA Financial Institutions); • Section 4.19 (Patriot Act); • Section 4.20 (Anti-Corruption Laws and Sanctions); • Section 4.21 (Security INterests); • Section 4.22 (Use of Proceeds); • Section 4.23 (Licenses; FCC); • Section 4.24 (Beneficial Ownership Certification); • | ||
(3) eliminate substantially all of the affirmative covenants and related provisions in the Existing Credit Agreement, including the covenants: • Section 6.2 (First Lien Net Leverage Ratio); • Section 6.3 (Pro Forma Adjustments); • Section 5.1 (Financial Statements and Other Information); • Section 5.2 (Notice of Material Events); • Section 5.3 (Existence; Conduct of Business); • Section 5.4 (Compliance with Laws, Etc.); • Section 5.5 (Payment of Obligations); • Section 5.6 (Books and Records); • Section 5.7 (Visitation, Inspection, Etc.); • Section 5.8 (Maintenance of Properties; Insurance); • Section 5.9 (Use of Proceeds and Letters of Credit); • Section 5.10 (Further Assurances); • Section 5.11 (The Blocked Accounts); • Section 5.12 (Formation of Subsidiaries); • Section 5.13 (Real Estate); • Section 5.14 (Post-Closing Obligations); • Section 5.15 (Corporate Credit Ratings); • Section 5.16 (Conference Calls); (4) eliminate substantially all of the negative covenants and related provisions in the Existing Credit Agreement, including the following covenants: • Section 7.1 (Indebtedness); • Section 7.2 (Liens; Negative Pledge); • Section 7.3 (Fundamental Changes; Permitted Acquisitions); • Section 7.4 (Investments, Loans, Etc.); • Section 7.5 (Restricted Payments); • Section 7.6 (Sale of Assets); • Section 7.7 (Transactions with Affiliates); • Section 7.8 (Restrictive Agreements); • Section 7.9 (Sale and Leaseback Transactions); • Section 7.10 (Business of the Borrower and its Restrictive Subsidiaries); • Section 7.12 (Accounting Changes); • Section 7.15 (Waivers and Amendments); • Section 7.16 (Bank Accounts); (5) eliminate the mandatory prepayments and related provisions in set forth in clauses (b), (c), (d) and (e) of Section 2.12 in the Existing Credit Agreement; (6) eliminate the Events of Default and related provisions in paragraphs (c), (d) (with respect to those covenants that are the subject of the Credit Agreement Amendment), (e) (with respect to those covenants that are the subject of the Credit Agreement Amendment), (f), (g), (h), (i) (other than in respect of the Borrower), (j), (k), (l), (m), (n), (o), (p) and (q) of Section 8.1 (Events of Default) of the Existing Credit Agreement; (7) make amendments to document that the Required Lenders (as defined in the Existing Credit Agreement) shall consent to the designation of the Existing Credit Agreement as “Additional First Lien Obligations” (as defined in the Existing Intercreditor Agreement) and shall consent to such amendments to the Existing Intercreditor Agreement the parties agree are required to expressly appoint JPMorgan Chase Bank, N.A., as administrative agent and collateral agent under the New Credit Agreement, as “Controlling Collateral Agent” under the Existing Intercreditor Agreement; (8) make amendments to document that any payments in respect of principal, accrued fees and interests of the New Tranche B-2 Term Loans, the New Tranche B-3 Term Loans, the New Revolving Credit Commitments and the commitments under the Non-Extended Revolving Credit Facility shall be prior to any payments in respect of principal, accrued fees and interest of the Existing Tranche B-3 Term Loans held by Non-Participating Tranche B-3 Term Loan Lenders (or provide that the Existing Collateral Agent shall enter into an intercreditor agreement with the agent under the New Credit Agreement to provide such priority); | ||
| (9) amend and restate the definition of “Unrestricted Subsidiary” in its entirety as follows: ““Unrestricted Subsidiary” shall mean (1) any Subsidiary of the Borrower, whether now owned or hereafter acquired or created, that is designated by the Borrower as an Unrestricted Subsidiary, and (2) any Subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”).”; (10) provide that, with respect to any Lender under the Existing Credit Agreement that is providing New Revolving Credit Commitments or Non-Extended Revolving Credit Commitments in an amount equal to the commitments under the Existing Revolving Credit Facility immediately prior to the transactions set forth in the TSA, any commitments under the Existing Revolving Credit Facility and any Existing Revolving Loans are terminated; (11) make amendments to permit the assignment and/or release of the Deposit Account Control Agreements (as defined in the certain Amended and Restated Pledge and Security Agreement, dated as of April 1, 2015, among the Company, Suntrust Bank as Administrative Agent, and the other parties thereto from time to time (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Security Agreement”) to the New Credit Agreement Agent; (12) provide that an entity to be agreed will be the administrative agent and collateral agent as successor to Wells Fargo Bank, National Association; (13) make any other amendment that the Company Group and the Required Consenting Holders that are Lenders under the Existing Credit Agreement deem necessary or desirable, in each case, to the extent that such amendment may be made with the consent of the Company and the Consenting Holders that are Lenders under the Existing Credit Agreement; and (14) the definitive documentation for the Credit Agreement Amendment shall be consistent with this Exhibit C in all material respects, with such modifications as contemplated by clause (9) above. | ||