EX-10.1 2 ex101-scrippsxnewcreditagr.htm EX-10.1
Execution Version - Exhibit 10.1

CREDIT AGREEMENT
dated as of April 10, 2025
among
THE E.W. SCRIPPS COMPANY,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Lenders,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,

JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.,
TRUIST SECURITIES INC. and
MORGAN STANLEY SENIOR FUNDING, INC.
as Joint Lead Arrangers and Joint Bookrunners
CAPITAL ONE, NATIONAL ASSOCIATION,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
FIFTH THIRD BANK, NATIONAL ASSOCIATION
and
PNC CAPITAL MARKETS LLC
as Co-Managers

* Exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K and will be provided on a supplemental basis to the Securities and Exchange Commission upon request.
TABLE OF CONTENTS

| Page
ARTICLE I DEFINITIONS; CONSTRUCTION | 1
Section 1.1. Definitions | 1
Section 1.2. Classifications of Loans and Borrowings | 47
Section 1.3. Accounting Terms and Determination | 47
Section 1.4. Terms Generally | 47
Section 1.5. [Reserved] | 48
Section 1.6. Delaware LLC Divisions | 48
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS | 49
Section 2.1. General Description of Facilities | 49
Section 2.2. Term Loans | 49
Section 2.3. Revolving Loans | 49
Section 2.4. Procedure for Borrowings | 50
Section 2.5. Swingline Commitment | 50
Section 2.6. Funding of Borrowings | 52
Section 2.7. Interest Elections | 52
Section 2.8. Optional Reduction and Termination of Commitments. | 53
Section 2.9. Repayment of Loans | 53
Section 2.10. Evidence of Indebtedness | 54
Section 2.11. Optional Prepayments | 54
Section 2.12. Mandatory Repayments | 55
Section 2.13. Interest on Loans | 58
Section 2.14. Fees | 58
Section 2.15. Computation of Applicable Margin, Applicable Percentage, Interest and Fees | 59
Section 2.16. Changed Circumstances | 60
Section 2.17. Illegality | 61
Section 2.18. Increased Costs | 61
Section 2.19. Funding Indemnity | 62
Section 2.20. Taxes | 63
Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 65
Section 2.22. Letters of Credit | 66
Section 2.23. Cash Collateral; Defaulting Lenders | 70
Section 2.24. Incremental Facilities | 72
Section 2.25. Mitigation of Obligations | 77
Section 2.26. Replacement of Lenders | 78
Section 2.27. Application of Payments | 78

| Page
Section 2.28. Extensions of Revolving Commitments and Term Loans | 80
Section 2.29. Reverse Dutch Auction Prepayments | 82
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT | 84
Section 3.1. Conditions To Effectiveness | 84
Section 3.2. Each Credit Event | 86
Section 3.3. Delivery of Documents | 87
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 87
Section 4.1. Existence; Power | 87
Section 4.2. Organizational Power; Authorization | 87
Section 4.3. Capital Stock and Related Matters | 87
Section 4.4. Governmental Approvals; No Conflicts | 88
Section 4.5. Financial Statements | 88
Section 4.6. Liabilities, Litigation and Environmental Matters | 88
Section 4.7. Compliance with Laws and Agreements | 88
Section 4.8. Material Contracts | 89
Section 4.9. Investment Company Act, Etc | 89
Section 4.10. Taxes | 89
Section 4.11. Margin Regulations | 89
Section 4.12. ERISA | 89
Section 4.13. Ownership of Property; Intellectual Property | 89
Section 4.14. Disclosure | 90
Section 4.15. Labor Relations | 90
Section 4.16. Subsidiaries and Joint Ventures | 91
Section 4.17. Solvency | 91
Section 4.18. EEA Financial Institutions | 91
Section 4.19. Patriot Act | 91
Section 4.20. Anti-Corruption Laws and Sanctions | 91
Section 4.21. Security Interests | 91
Section 4.22. Use of Proceeds | 91
Section 4.23. Licenses; FCC | 91
Section 4.24. Beneficial Ownership Certification | 92
Section 4.25. Outbound Investment Rules | 92
ARTICLE V AFFIRMATIVE COVENANTS | 92
Section 5.1. Financial Statements and Other Information | 92
Section 5.2. Notices of Material Events | 94
Section 5.3. Existence; Conduct of Business | 95
Section 5.4. Compliance with Laws, Etc | 95

ii

| Page
Section 5.5. Payment of Obligations | 95
Section 5.6. Books and Records | 95
Section 5.7. Visitation, Inspection, Etc | 95
Section 5.8. Maintenance of Properties; Insurance | 95
Section 5.9. Use of Proceeds and Letters of Credit | 96
Section 5.10. Further Assurances | 96
Section 5.11. The Blocked Accounts | 96
Section 5.12. Formation of Subsidiaries | 96
Section 5.13. Real Estate | 98
Section 5.14. Post-Closing Obligations | 98
Section 5.15. Corporate Credit Ratings | 98
Section 5.16. Conference Calls | 98
ARTICLE VI FINANCIAL COVENANTS | 98
Section 6.1. Non-Extended Revolving Facility Financial Covenant | 98
Section 6.2. Initial Revolving Facility Financial Covenant | 98
Section 6.3. Pro Forma Adjustments | 99
ARTICLE VII NEGATIVE COVENANTS | 99
Section 7.1. Indebtedness | 99
Section 7.2. Liens; Negative Pledge | 103
Section 7.3. Fundamental Changes; Permitted Acquisitions | 104
Section 7.4. Investments, Loans, Etc | 106
Section 7.5. Restricted Payments | 107
Section 7.6. Sale of Assets | 108
Section 7.7. Transactions with Affiliates | 111
Section 7.8. Restrictive Agreements | 111
Section 7.9. Sale and Leaseback Transactions | 111
Section 7.10. Business of the Borrower and its Subsidiaries | 112
Section 7.11. Liability Management Transactions | 112
Section 7.12. Accounting Changes | 112
Section 7.13. Additional Restrictions on Transfers | 112
Section 7.14. [Reserved] | 112
Section 7.15. Waivers and Amendments | 112
Section 7.16. Bank Accounts | 113
ARTICLE VIII EVENTS OF DEFAULT | 113
Section 8.1. Events of Default | 113
Section 8.2. Remedies | 115

iii

| Page
ARTICLE IX THE ADMINISTRATIVE AGENT | 116
Section 9.1. Appointment and Authority of Administrative Agent | 116
Section 9.2. Rights as a Lender | 117
Section 9.3. Exculpatory Provisions. | 117
Section 9.4. Reliance by the Administrative Agent | 118
Section 9.5. Delegation of Duties | 118
Section 9.6. Resignation of Administrative Agent | 118
Section 9.7. Non-Reliance on Administrative Agent and Other Lenders | 119
Section 9.8. Collateral | 119
Section 9.9. Release of Collateral | 120
Section 9.10. No Other Duties, etc | 121
Section 9.11. [Reserved] | 121
Section 9.12. Administrative Agent May File Proofs of Claim | 121
Section 9.13. Right to Realize on Collateral and Enforce Guarantee; Credit Bidding | 122
Section 9.14. Secured Hedge Agreements and Secured Cash Management Agreements | 122
Section 9.15. Authorization to Execute Other Loan Documents; Intercreditor Agreements | 122
Section 9.16. Acknowledgement of Lenders and Issuing Banks | 122
Section 9.17. Borrower Communications | 124
ARTICLE X MISCELLANEOUS | 125
Section 10.1. Notices | 125
Section 10.2. Waiver; Amendments | 126
Section 10.3. Expenses; Indemnification; Limitation of Liability | 130
Section 10.4. Successors and Assigns | 132
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process. | 136
Section 10.6. WAIVER OF JURY TRIAL | 137
Section 10.7. Right of Setoff | 137
Section 10.8. Counterparts; Integration | 137
Section 10.9. Survival | 137
Section 10.10. Severability | 138
Section 10.11. Confidentiality | 138
Section 10.12. Interest Rate Limitation | 138
Section 10.13. Waiver of Effect of Corporate Seal | 138
Section 10.14. Patriot Act | 139
Section 10.15. Independence of Covenants | 139
Section 10.16. No Advisory or Fiduciary Relationship | 139
Section 10.17. Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 139
Section 10.18. Certain ERISA Matters | 140
Section 10.19. Acknowledgement Regarding Any Supported QFCs | 140

iv

Schedules
Schedule I - Term Loan Commitment Amounts
Schedule II - Revolving and LC Commitment Amounts
Schedule III - Existing Letters of Credit
Schedule 4.3 - Equity Interests
Schedule 4.4 - Third Party Consents
Schedule 4.6(a) - Litigation and Liabilities
Schedule 4.6(b) - Environmental Matters
Schedule 4.8 - Material Contracts
Schedule 4.12 - ERISA Matters
Schedule 4.13(b) - Intellectual Property
Schedule 4.13(c) - Websites
Schedule 4.13(d) - Insurance
Schedule 4.16 - Subsidiaries
Schedule 4.23 - Station Licenses
Schedule 4.23(b) - Adverse Actions
Schedule 5.11(a) - Deposit Accounts
Schedule 5.14 - Post-Closing Obligations
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.7 - Affiliate Transactions
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - [Reserved]
Exhibit D - Form of Assignment and Acceptance
Exhibit E - [Reserved]
Exhibit F - Form of Perfection Certificate
Exhibit G - Form of Discounted Prepayment Option Notice
Exhibit H - Form of Lender Participation Notice
Exhibit I - Form of Discounted Voluntary Prepayment Notice
Exhibit J - Form of Term Loan Note
Exhibit 2.20A - Form of U.S. Tax Compliance Certificate
Exhibit 2.20B - Form of U.S. Tax Compliance Certificate
Exhibit 2.20C - Form of U.S. Tax Compliance Certificate
Exhibit 2.20D - Form of U.S. Tax Compliance Certificate
Exhibit 3.1(b)(ix) - Form of Secretary’s Certificate
Exhibit 3.1(b)(xii) - Form of Officer’s Certificate
Exhibit 3.1(b)(xx) - Form of Solvency Certificate
Exhibit 5.1(d) - Form of Compliance Certificate

CREDIT AGREEMENT
THIS CREDIT AGREEMENT (as amended, restated, amended and restated or otherwise modified from time to time, this “Agreement”) is made and entered into as of April 10, 2025, by and among THE E.W. SCRIPPS COMPANY, an Ohio corporation (the “Borrower”), the several banks and other financial institutions and lenders from time to time party hereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as an issuing bank and as swingline lender.
W I T N E S S E T H:
WHEREAS, the Borrower is party to that certain Third Amended and Restated Credit Agreement, dated as of April 28, 2017, among the Borrower, the lenders from time to time party thereto, and Wells Fargo Bank, National Association as administrative agent (as amended by that certain First Amendment to Third Amended and Restated Credit Agreement, dated as of October 2, 2017, that certain Second Amendment to Third Amended and Restated Credit Agreement, dated as of April 3, 2018, that certain Third Amendment to Third Amended and Restated Credit Agreement, dated as of November 20, 2018, that certain Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2019, that certain Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of December 18, 2019, that certain Sixth Amendment to Third Amended and Restated Credit Agreement, dated as of January 7, 2021, that certain Seventh Amendment to Third Amended and Restated Credit Agreement, dated as of March 7, 2023 and that certain Eighth Amendment to Third Amended and Restated Credit Agreement, dated as of July 31, 2023 and as further amended, restated or otherwise modified immediately prior to the date hereof, “Existing Credit Agreement”).
WHEREAS, pursuant to the Existing Credit Agreement, the Borrower has (i) borrowed Existing Tranche B-2 Term Loans with an outstanding aggregate principal amount of $719,310,375.00 and (ii) borrowed Existing Tranche B-3 Term Loans with an outstanding aggregate principal amount of $541,000,000.00.
WHEREAS, the Borrower and certain Lenders party hereto are party to that certain Transaction Support Agreement, dated as of March 10, 2025 (as amended, restated, amended and restated or otherwise modified from time to time, the “Transaction Support Agreement”).
WHEREAS, pursuant to the Transaction Support Agreement, the Borrower desires to (i) repay $385,000,000 of the Existing Tranche B-2 Term Loans under the Existing Credit Agreement with (a) certain borrowings under the A/R Securitization Facility, (b) cash on hand and (c) the borrowings under the Revolving Facilities, (ii) exchange the remaining Existing Tranche B-2 Term Loans with the Tranche B-2 Term Loans, (iii) exchange $200,000,000 of Existing Tranche B-3 Term Loans with the Tranche B-2 Term Loans, (iv) exchange certain other Existing Tranche B-3 Term Loans with the Tranche B-3 Term Loans, (v) replace the Existing Revolving Facility with the Revolving Facilities and (vi) repay in full the remaining Existing Tranche B-3 Term Loans (the aforementioned transactions, together with the payment of all fees and expenses payable on the Closing Date in connection therewith, collectively, the “Closing Date Refinancing Transactions”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Borrower, the Lenders, the Administrative Agent, the Issuing Banks and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):
“2027 Unsecured Notes Indenture” shall mean that certain Indenture, dated as of July 26, 2019, pursuant to which the Borrower’s 5.875% senior unsecured notes due 2027 were issued, among Scripps Escrow, Inc. and U.S. Bank National Association, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.
“2027 Unsecured Notes” shall mean the Borrower’s 5.875% senior unsecured notes due 2027 issued under the 2027 Unsecured Notes Indenture.
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“2031 Unsecured Notes Indenture” shall mean that certain Indenture, dated as of December 30, 2020, among Scripps Escrow II, Inc. and U.S. Bank National Association, pursuant to which the Borrower’s 5.375% senior unsecured notes due 2031 were issued, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.
“2031 Unsecured Notes” shall mean the Borrower’s 5.375% senior unsecured notes due 2031 issued under the 2031 Unsecured Notes Indenture.
“Acquisition” shall mean any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Borrower or any of its Subsidiaries (a) acquires any business or all or substantially all of the assets of any Person, or division thereof, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of members of the board of directors or the equivalent governing body (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
“Acquisition Consideration” shall mean the purchase consideration for any Permitted Acquisition and all other payments by the Borrower or any of its Subsidiaries in exchange for any Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business acquired in connection with such Permitted Acquisition; provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, or the liability required under GAAP at the time of such sale to be established or otherwise recorded in respect thereto by the Borrower or any of its Subsidiaries.
“Activation Notice” shall have the meaning assigned to such term in Section 5.11(a).
“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph hereof.
“Adjusted Term SOFR” shall mean, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR is less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided, further that in no event shall Adjusted Term SOFR be less than, in the case of the Tranche B-2 Term Loans and the Tranche B-3 Term Loans 1.00% or, in the case of the Initial Revolving Loans and Non-Extended Revolving Loans, 0%.
“Administrative Questionnaire” shall mean, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Initial Revolving Commitment Amount” shall mean the aggregate principal amount of the Aggregate Initial Revolving Commitments from time to time. As of the Closing Date, the Aggregate Initial Revolving Commitment Amount is $208,000,000.
“Aggregate Initial Revolving Credit Exposure” shall mean, collectively, the Initial Revolving Credit Exposure of all Lenders at any time of determination.
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“Aggregate Non-Extended Revolving Commitment Amount” shall mean the aggregate principal amount of the Aggregate Non-Extended Revolving Commitments from time to time. As of the Closing Date, the Aggregate Non-Extended Revolving Commitment Amount is $70,000,000.
“Aggregate Non-Extended Revolving Credit Exposure” shall mean, collectively, the Non-Extended Revolving Credit Exposure of all Lenders at any time of determination.
“Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments of all Lenders at any time outstanding.
“Aggregate Revolving Credit Exposure” shall mean, collectively, the Initial Revolving Credit Exposure and Non-Extended Revolving Credit Exposure of all Lenders at any time of determination.
“Aggregate Subsidiary Threshold” shall mean an amount equal to ninety-five percent (95%) of the total consolidated revenue of the Borrower and its Subsidiaries for the most recent fiscal period as shown on the income statement of the Borrower most recently delivered pursuant to Section 5.1(a) or (b), as applicable, and ninety-five (95%) 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 Subsidiaries provided to the Administrative Agent pursuant to Section 3.1(xiv).
“All-in Yield” shall mean, as to any Loans, the yield thereon payable to all Lenders (or other lenders, as applicable) providing such Loans in the primary syndication thereof, as reasonably determined by the Administrative Agent in consultation with the Borrower, whether in the form of interest rate, margin, original issue discount, up-front fees, rate floors or otherwise; provided, that original issue discount and up-front fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the life of such Loans); provided, further, that “All-in Yield” shall not include arrangement, commitment, underwriting, structuring, or similar fees that are not shared with all lenders or holders thereof generally and in their capacity as lenders or holders.
“Anti-Corruption Laws” shall mean all laws, rules and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” shall mean any and all laws, judgments, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to the Borrower or any of its Subsidiaries related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Anti-Terrorism Order” shall mean Executive Order 13224, signed by President George W. Bush on September 24, 2001.
“Applicable Law” shall mean all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
“Applicable Lending Office” shall mean, for each Lender and for each Type or Class of Loan, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type or Class of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type or Class are to be made and maintained.
“Applicable Margin” shall mean, as of any date, with respect to the Tranche B-2 Term Loans, the Tranche B-3 Term Loans, the Initial Revolving Loans, the Non-Extended Revolving Loans and Revolving LC Participation Fees, the Applicable Rate for each Type of Loan then in effect, in each case, to the extent applicable, as adjusted and otherwise determined from time to time in accordance with Section 2.15(a). Notwithstanding the foregoing, the Applicable Margin in respect of any tranche of Extended Revolving Commitments or Extended Revolving Loans made pursuant thereto or Extended Term Loans shall be the applicable percentages set forth in the relevant Extension Offer.
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“Applicable Percentage” shall mean the percentage per annum determined by reference to the applicable Senior Secured Net Leverage Ratio in effect on such date as set forth immediately below (provided, that, commencing on the Closing Date until the date of the delivery of the financial statements pursuant to Section 5.1(a) or 5.1(b) as of and for the first Fiscal Quarter ended after the Closing Date, the Applicable Percentage shall be Pricing Level 1), in each case, as adjusted and otherwise determined from time to time in accordance with Section 2.15(a):

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%

Notwithstanding the foregoing, the Applicable Percentage in respect of any tranche of Extended Revolving Commitments or Extended Revolving Loans made pursuant thereto shall be the applicable percentages set forth in the relevant Extension Offer.
“Applicable Period” shall have the meaning set forth in Section 5.1.
“Applicable Rate” shall mean:
(1) with respect to the Tranche B-2 Term Loans, for any day on and after the Closing Date, (i) with respect to Term SOFR Loans, a rate per annum equal to 5.75% and (ii) with respect to Base Rate Loans, a rate per annum equal to 4.75%;
(2) with respect to the Tranche B-3 Term Loans, for any day on and after the Closing Date, (i) with respect to Term SOFR Loans, a rate per annum equal to 3.35% and (ii) with respect to Base Rate Loans, a rate per annum equal to 2.35%;
(3) with respect to the Initial Revolving Loans and Revolving LC Participation Fees, for any day on and after the Closing Date, (i) with respect to Term SOFR Loans, a rate per annum equal to 5.50% and (ii) with respect to Base Rate Loans, a rate per annum equal to 4.50%;
(4) [Reserved];
(5) with respect to Non-Extended Revolving Loans, for any day on and after the Closing Date, the applicable rate per annum set forth immediately below, based upon the Senior Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate delivered to the Administrative Agent pursuant to Section 5.1(d): provided, that, commencing on the Closing Date until the date of the delivery of the financial statements pursuant to Section 5.1(a) or 5.1(b) as of and for the first Fiscal Quarter ended after the Closing Date, the rate per annum under this clause (a) shall be Pricing Level 2

Pricing Level | Senior Secured Net Leverage Ratio | Term SOFR Loans | Base Rate Loans
1 | ≥ 3.00:1.00 | 2.75% | 1.75%
2 | < 3.00:1.00 but ≥ 2.70:1.00 | 2.50% | 1.50%
3 | < 2.70:1.00 but ≥ 2.20:1.00 | 2.25% | 1.25%

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4 | < 2.20:1.00 but ≥ 1.20:1.00 | 2.00% | 1.00%
5 | < 1.20:1.00 | 1.75% | 0.75%

Except as otherwise provided in clause (5) immediately above, each change in the Applicable Rate (if any) with respect to the Non-Extended Revolving Loans resulting from a change in the Senior Secured Net Leverage Ratio shall be determined and adjusted quarterly on the date on which the Borrower provides the Compliance Certificate in accordance with Section 5.1(d) indicating such change and ending on the date immediately preceding the effective date of the next such change; provided, however that, notwithstanding the foregoing, if the Borrower fails to provide the Compliance Certificate by the date such certificate is required to be delivered under Section 5.1(d), the Applicable Rate with respect to Non-Extended Revolving Loans from such date shall be at Pricing Level 1 under clause (5) immediately above until such time as an appropriate Compliance Certificate is provided, whereupon the level shall be determined as provided above.
Notwithstanding the foregoing, and for the avoidance of doubt, the Applicable Rate for all Loans will be subject to Section 2.13(c).
“Approved Bank” shall have the meaning set forth in Section 5.11(a).
“Approved Borrower Portal” shall have the meaning set forth in Section 9.17(a).
“Approved Fund” shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business and that is administered or managed by (i) a Lender, (ii) a Lender Affiliate of a Lender or (iii) an entity or a Lender Affiliate of an entity that administers or manages a Lender.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit D attached hereto or any other form approved by the Administrative Agent.
“Available Amount” shall mean, at any time (the “Reference Date”) an amount equal to:
(a) the sum of:
(i) solely with respect to Restricted Payments consisting of the payment of dividends on preferred stock of the Borrower made in connection with Section 7.5(d), $75,000,000, otherwise, $0; plus
(ii) the Cumulative Retained Excess Cash Flow Amount as of such Reference Date; provided that if such amount pursuant to this clause (ii) shall be less than $0 for any Available Amount Reference Period, such amount shall be deemed to be $0; provided, further, that the Cumulative Retained Excess Cash Flow Amount under this clause (ii) shall be reduced on a dollar-for-dollar basis by any such amounts utilized pursuant to Section 7.5(f); plus
(iii) to the extent not already included in the calculation of Consolidated EBITDA, and subject to Section 2.12(c) and subject to the last paragraph of Section 7.4 in all respects, any returns in cash on Investments made utilizing the Available Amount including, without limitation, the aggregate amount received in cash through interest payments, principal payments, dividends or distributions or any sale, transfer or other disposition of such Investment (in an amount equal to the lesser of the return of capital with respect to such Investment and the cost of such Investment, in either case, reduced (but not below zero) by the excess, if any, of the cost of the disposition of such Investment over the gain, if any, realized by the Borrower or its Subsidiaries, as the case may be, in respect of such disposition); plus
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(iv) [reserved]; plus
(v) the amount of all Net Proceeds From Equity Issuance, but only to the extent such Net Proceeds From Equity Issuance have been received by the Borrower prior to the applicable date of determination in cash as equity that is not Disqualified Equity Interests of the Borrower, but including, for the avoidance doubt, the Net Proceeds From Equity Issuance received by the Borrower in connection with the exchange of Indebtedness or Disqualified Equity Interests of the Borrower which have been exchanged or converted into Qualified Equity Interests of the Borrower (other than any such Net Proceeds From Equity Issuance to the extent such proceeds are utilized for an Investment permitted pursuant to Section 7.4 or a Restricted Payment permitted pursuant to Section 7.5); plus
(vi) the aggregate amount of any Retained Declined Proceeds; provided that the amount of Retained Declined Proceeds under this clause (vi) shall be reduced on a dollar-for-dollar basis by any such amounts utilized pursuant to Section 7.5(f) minus
(b) the aggregate amount of all Investments and Restricted Payments made utilizing the Available Amount, in each case, from and after the Closing Date and prior to the Reference Date.
“Available Amount Conditions” shall mean, immediately before and after giving effect to the applicable Available Amount Transaction, (i) no Event of Default shall be continuing and (ii)(A) for usage pursuant to Section 7.5(d) (except as set forth in clause (C) hereof), the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the Test Period, does not exceed 3.00 to 1.00, (B) for usage pursuant to Section 7.4(i), the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the Test Period, does not exceed 3.75 to 1.00 and (C) for usage pursuant to Section 7.5(d) with respect to the payment of dividends on preferred stock of the Borrower, the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the Test Period, does not exceed 4.25 to 1.00.
“Available Amount Reference Period” shall mean, with respect to any Reference Date, the period commencing on Closing Date and ending on Fiscal Year or Fiscal Quarter ended immediately prior to the Reference Date and for which financial statements have been delivered pursuant to Section 5.1(a) or (b), as applicable.
“Available Amount Transaction” shall mean an Investment pursuant to Section 7.4(i) and/or a Restricted Payment pursuant to Section 7.5(d), in each case made in reliance on the Available Amount.
“Available Tenor” shall mean, as of any date of determination and with respect to any then-current Benchmark, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.16(e).
“Availability Period” shall mean the Initial Revolving Facility Availability Period and/or Non-Extended Revolving Facility Availability Period, as the context may require.
“A/R Securitization Facility” shall mean the facility provided pursuant to that certain Receivables Financing Agreement, dated as of the Closing Date, by and among Scripps SPV, LLC, as the borrower, PNC Bank, National Association, as the administrative agent, the lenders and lender representatives party thereto and the other parties party thereto.
“A/R Securitization Facility Documents” shall mean the material documents governing or implementing the A/R Securitization Facility.
“Backstop Commitment Letter” shall mean that certain Backstop Commitment Letter, dated as of March 10, 2025, by and among certain Term Loan Lenders, the Fronting Lender and the Borrower, as amended, restated, amended and restated or otherwise modified from time to time.
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“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1%, and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day); provided that, for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.16 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.16(b)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, (x) if the Base Rate as determined pursuant to the foregoing would be less than 2.00%, such rate shall be deemed to be, in the case of the Tranche B-2 Term Loans and the Tranche B-3 Term Loans 2.00% and (y) if the Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be, in the case of the Initial Revolving Loans and Non-Extended Revolving Loans, 1.00%.
“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or then-current Benchmark, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.16(b).
“Benchmark Replacement” shall mean, with respect to any Benchmark Transition Event, for any then-current Benchmark the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than zero, such Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents; provided, further that, in no event shall the Benchmark Replacement be less than, in the case of the Tranche B-2 Term Loans and the Tranche B-3 Term Loans 1.00% or, in the case of the Initial Revolving Loans and Non-Extended Revolving Loans, 0% for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
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“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:
(a)in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” shall mean, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
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“Benchmark Unavailability Period” shall mean, with respect to any then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16(b) and (b) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16(b).
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 CFR § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“Berkshire Agreement” shall mean that certain Securities Purchase Agreement, by and between The E.W. Scripps Company and Berkshire Hathaway, Inc., dated September 23, 2020, as amended, modified and supplemented from time to time.
“Berkshire Preferred Stock” shall mean 6,000 shares Preferred Shares, $0.01 par value per share, of The E.W. Scripps Company with terms described in the Berkshire Agreement.
“Blocked Account” shall have the meaning specified in Section 5.11(a).
“bona fide business purpose” shall have the meaning commonly associated with such term but in no event shall be deemed to include a Liability Management Transaction.
“Borrower” shall have the meaning specified in the introductory paragraph hereof.
“Borrower Communications” shall mean, collectively, any Notice of Borrowing, Notice of Conversion/Continuation, Notice of Swingline Borrowing, notice of prepayment, notice requesting the issuance, amendment or extension of a Letter of Credit or other notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Borrower to the Administrative Agent through an Approved Borrower Portal.
“Borrowing” shall mean a borrowing consisting of (i) Revolving Loans of the same Class and Type, made, converted or continued on the same date and in the case of Term SOFR Loans, as to which a single Interest Period is in effect, (ii) Term Loans of the same Class and Type, made, converted or continued on the same date and in the case of Term SOFR Loans, as to which a single Interest Period is in effect, or (iii) a Swingline Loan.
“Bounce Sale” shall mean the sale of the Borrower’s and/or its Subsidiaries’ Bounce television network, consisting of (i) Bounce TV, an African-American-centric television network, (ii) Bounce XL, a free ad-supported television network, (iii) Brown Sugar, a subscription video on-demand service and (iv) the “Trumpet Awards” and any broadcast thereof.
“Business Day” shall mean any day (other than a Saturday or Sunday) on which banks are open for business in New York City; provided that, a Business Day shall be any such day that is a U.S. Government Securities Business Day in relation to Loans referencing Adjusted Term SOFR and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing Adjusted Term SOFR or any other dealings of such Loans referencing Adjusted Term SOFR.
“Capital Expenditures” shall mean, for any period, on a consolidated basis for the Borrower and its Subsidiaries, the aggregate of all expenditures made by the Borrower or its Subsidiaries during such period that, in conformity with GAAP, are required to be included in or reflected on the consolidated balance sheet as a capital asset of the Borrower and its Subsidiaries, including, without limitation, Capital Lease Obligations of the Borrower and its Subsidiaries.
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“Capital Lease Obligations” of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash” shall mean money, currency or a credit balance of any Loan Party in any demand deposit account located in the United States of America.
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Banks or Lenders, as collateral for LC Exposure or obligations of Lenders to fund participations in respect of LC Exposure, Cash or, if the Administrative Agent and the Issuing Banks shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Issuing Banks. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.
“Cash Management Agreement” shall mean any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payables), electronic funds transfer and other cash management arrangements.
“Cash Management Bank” shall mean any Person that, (a) at the time it enters into a Cash Management Agreement with a Loan Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender (including on the Closing Date), is a party to a Cash Management Agreement with a Loan Party, in each case in its capacity as a party to such Cash Management Agreement.
“Cashless Option Lender” shall mean each Lender that has executed and delivered a Consent indicating the “Cashless Settlement Option.”
“Change in Control” shall mean the occurrence of one or more of the following events: (i) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any Person or “group” (within the meaning of the Exchange Act and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof), (ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Exchange Act and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), other than Permitted Holders, of 50% or more of the outstanding Common Voting Shares and any other common stock at any time issued by the Borrower, other than the Borrower’s Class A Common Shares, or (iii) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals who are Continuing Directors. As used herein, “Common Voting Shares” shall mean the common Equity Interests of the Borrower designated as Common Voting Shares. For the avoidance of doubt, Common Voting Shares do not include the Borrower’s Class A Common Shares.
“Change in Law” shall mean the occurrence of any of the following: (i) the adoption of any Applicable Law after the Closing Date, (ii) any change in any Applicable Law, or any change in the administration, interpretation, implementation or application thereof, by any Governmental Authority after the Closing Date, or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that for purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Revolving Loans, Swingline Loans, Non-Extended Revolving Loans, Tranche B-2 Term Loans, Tranche B-3 Term Loans, New Term Loans, Refinancing Term Loans, New Revolving Loans, Extended Revolving Loans, Replacement Revolving Loans or Extended Term Loans and when used in reference to any Commitment, refers to whether such Commitment is an Initial Revolving Commitment, Non-
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Extended Revolving Commitment, Tranche B-2 Term Loan Commitment, Tranche B-3 Term Loan Commitment, Swingline Commitment, New Revolving Commitment, Replacement Revolving Commitments or Extended Revolving Commitment. Extended Revolving Loans and Extended Term Loans that have different terms and conditions (together with the Commitments in respect thereof) shall be construed to be in different Classes.
“Closing Date” shall mean the date on which the conditions precedent set forth in Section 3.1 have been satisfied or waived in accordance with Section 10.2. The Closing Date shall be April 10, 2025.
“Closing Date ICA Amendment” shall mean that certain Collateral Agent Joinder Agreement No. 1 and Amendment, dated as of the Closing Date, by and among the Borrower, the grantors party thereto, Wells Fargo Bank, National Association, as the initial credit agreement administrative agent, JPMorgan Chase Bank, N.A., as new credit agreement administrative agent, U.S. Bank National Association as initial additional first lien collateral agent and each other additional collateral agent from time to time party thereto.
“Closing Date Refinancing Transactions” shall have the meaning set forth in the recitals of this Agreement.
“Co-Managers” shall mean Capital One, National Association, Wells Fargo Bank, National Association, Fifth Third Bank, National Association and PNC Capital Markets LLC, in their capacity as co-managers in respect of the New Revolving Facility.
“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
“Collateral” shall mean all Property pledged as collateral security for the Secured Obligations pursuant to the Security Documents or otherwise, and all other Property of the Loan Parties that is now or hereafter in the possession or control of any Lender, or on which any Lender has been granted a Lien. Collateral does not include any Real Estate or any Excluded Property.
“Collateral Access Agreement” shall mean any agreement of any lessor, warehouseman, processor, consignee or other Person in possession of, having a Lien upon or having rights or interests in, any of the Collateral in favor of the Administrative Agent, for the benefit of the Lenders, in form and substance satisfactory to the Administrative Agent, waiving or subordinating Liens or certain other rights or interests such Person may hold in regard to the Property of the Loan Parties and providing the Administrative Agent access to its Collateral.
“Collateral Related Account” shall mean all deposit, securities, investment, collection, clearing and concentration accounts (including all cash and other funds on deposit therein) (other than the Excluded Accounts).
“Commitment” shall mean, with respect to each Lender, such Lender’s Revolving Commitment, Term Loan Commitment and Swingline Commitment.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended and in effect from time to time, and any successor statute.
“Commitment Fee” shall have the meaning set forth in Section 2.14(b).
“Communications Act” shall mean the Communications Act of 1934, as amended, and any similar or successor federal statute.
“Communications Laws” shall mean (i) the Communications Act and (ii) all rules, regulations, written policies, orders and decisions of the FCC under the Communications Act, as each may be in effect from time to time.
“Compliance Certificate” shall mean a certificate from the chief executive officer, the chief financial officer or treasurer of the Borrower in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(d).
“Conforming Changes” shall mean, with respect to the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the
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definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.16 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries on a consolidated basis for any period, an amount equal to the sum of:
(i)Consolidated Net Income for such period; plus
(ii)to the extent deducted in determining Consolidated Net Income for such period and without duplication,
(A)Consolidated Interest Expense,
(B)Consolidated Income Tax Expense,
(C)depreciation and amortization determined on a consolidated basis in accordance with GAAP,
(D)all other non-cash expenses and other non-cash charges recorded during such period (other than any non-cash charge that represents an accrual or reserve for potential cash charges in any future period or amortization of a prepaid cash charge that was paid in a prior period),
(E)transaction fees and other charges related to the issuance of Equity Interests or Indebtedness of the Borrower or any Subsidiary (including, for the avoidance of doubt, in connection with the Transactions as well as other transactions undertaken, but not yet completed, as of the Closing Date),
(F)transaction fees, expenses and other charges related to dispositions, Investments, issuances or modifications of Indebtedness or Equity Interests, payments of Indebtedness and Capital Expenditures permitted hereunder and Acquisitions (whether or not successfully consummated) (including such transactions undertaken, but not yet completed, as of the Closing Date),
(G)losses or expenses resulting from extraordinary, unusual or non-recurring items (including losses on sales of equipment or business lines); provided, that such losses or expenses resulting from extraordinary losses under clause (i) of Consolidated Net Income and the non-recurring cash items that are included in this clause (ii)(G), collectively with the add-backs in clause (ii)(H), clause (iii)(x), and clause (iii)(y) below, and collectively with any costs or expenses added back relating to compliance with Regulation S-X of the Exchange Act, do not, in the aggregate, exceed 20% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to any such adjustments or exclusions),
(H)non-recurring cash expenses for business optimization expenses and other restructuring charges or expenses, integration expenses, accruals or reserves; provided, that such cost savings that are included in this clause (ii)(H), collectively with the add-backs in clause (ii)(G) above (in respect of non-recurring cash items), clause (iii)(x) below, and clause (iii)(y) below and extraordinary losses under clause (i) of Consolidated Net Income, collectively with any costs or expenses added back relating to compliance with
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Regulation S-X of the Exchange Act, do not, in the aggregate, exceed 20% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to any such adjustments or exclusions), and
(I)net unrealized losses in the fair market value of any arrangements under Hedge Agreements, plus
(iii)(x) for all purposes under this Agreement and the other Loan Documents other than with respect to the calculation of the First Lien Net Leverage Ratio solely with respect to Article VI hereof, the amount of (A) net “run rate” cost savings and operating expense reductions actually implemented by the Borrower or related to a Permitted Acquisition which have been taken or will be taken within 12 months after such transaction or initiative is consummated, and (B) “run rate” cost savings and cost synergies projected in good faith by the Borrower to be realized as a result of actions taken in connection with any Investment under Section 7.4(e) or 7.4(f) or any Permitted Acquisition, in each case to the extent permitted hereunder (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized or expected to be realized during such period from such actions; provided that:
(1)a Responsible Officer of the Borrower shall have certified to the Administrative Agent that (a) such cost savings are reasonably identifiable and quantifiable, reasonably anticipated to be realizable and factually supportable in the good faith judgment of the Borrower and (b) in the case of “run rate” cost savings and operating expense reductions pursuant to clause (iii)(x)(A) above, such actions have been taken or are committed to be taken within or are reasonably expected to be taken within 12 months after the end of the relevant period, and
(2)such cost savings that are included in clause (ii)(H) and the add-backs in clause (ii)(G) (in respect of non-recurring cash items) above, this clause (iii)(x), and clause (iii)(y) below, and extraordinary losses under clause (i) of Consolidated Net Income, collectively with any costs or expenses added back relating to compliance with Regulation S-X of the Exchange Act, do not, in the aggregate, exceed 20% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to any such adjustments or exclusions);
(y) solely for purposes of the calculation of the First Lien Net Leverage Ratio in connection with Article VI hereof, the amount of “run rate” cost savings and cost synergies projected in good faith by the Borrower to be realized as a result of actions taken in connection with any Investment permitted under Section 7.4, any Permitted Acquisition or merger, consolidation, reorganization or restructuring permitted under Section 7.3 or any Disposition permitted under Section 7.6, in each case to the extent permitted hereunder (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized or expected to be realized during such period from such actions; provided that
(1)a Responsible Officer of the Borrower shall have certified to the Administrative Agent that (a) such cost savings are reasonably identifiable and quantifiable, reasonably anticipated to be realizable and factually supportable in the good faith judgment of the Borrower and (b) such actions have been taken or are committed to be taken within or are reasonably expected to be taken within 12 months after the end of the relevant period; and
(2)such cost savings that are included in clause (ii)(H), the add-backs in clause (ii)(G) (in respect of non-recurring cash items) and clause (iii)(x) above, and this clause (iii)(y), and extraordinary losses under clause (i) of Consolidated Net Income, collectively with any costs or expenses added back relating to compliance with Regulation S-X of the Exchange Act and amounts excluded for extraordinary losses under clause (i) of Consolidated Net Income, do not, in the aggregate, exceed 20% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to any such adjustments or exclusions).
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“Consolidated Income Tax Expense” shall mean, for the Borrower and its Subsidiaries determined on a consolidated basis, for any period, income tax expense or benefit determined in accordance with GAAP for such period.
“Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries, for any period determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (i) interest expense and loan fees, including capitalized and non-capitalized interest and the interest component of Capital Lease Obligations (whether or not actually paid during such period) and (ii) the net amount payable (minus the net amount receivable) under any Hedge Agreements during such period (whether or not actually paid or received during such period).
“Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise included therein) (i) any extraordinary gains or losses, (ii) any gains or losses attributable to write-ups or write-downs of assets, (iii) any income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any Subsidiary of the Borrower on the date that such Person’s assets are acquired by the Borrower or any Subsidiary of the Borrower, (iv) any Equity Interest of the Borrower and its Subsidiaries in the unremitted earnings of any Person that is not a Subsidiary, (v) the income of any Subsidiary of the Borrower that is not a Loan Party to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of any Requirement of Law or any agreement, instrument, or judgment applicable to that Subsidiary, (vi) any impairment charges, amortization of or immediate recognition of actuarial gains or losses, in each case, only to the extent such items are non-cash in nature, on the Borrower’s or its Subsidiaries’ defined benefit pension plans, (vii) any gains or losses attributable to Dispositions and (viii) to the extent reflected in the calculation of such net income (or loss), gains or losses attributable to earn-outs or other contingent consideration arising in connection with any acquisition permitted hereunder (including payments required to be made under earnouts to which a seller becomes entitled); provided that amounts added back pursuant to clause (ii)(H), clause (ii)(G) (in respect of non-recurring cash items), clause (iii)(x) and clause (iii)(y) of Consolidated EBITDA, collectively with any costs or expenses added back relating to compliance with Regulation S-X of the Exchange Act and amounts excluded for extraordinary losses under clause (i) of this definition, do not, in the aggregate, exceed 20% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to any such adjustments).
“Consolidated Total Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet delivered pursuant to Section 5.1(a) or (b), as applicable.
“Consolidated Total Debt” shall mean, as of any date, the difference of (a) all Indebtedness of the Borrower and its Subsidiaries measured on a consolidated basis as of such date, but excluding (i) Indebtedness of the type described in subsection (xi) of the definition thereto, (ii) Indebtedness of the type described in subsection (vi) of the definition thereto (but including any unreimbursed drawings with respect to letters of credit to the extent such drawing is not reimbursed within one (1) Business Day after such drawing), (iii) the portion of any earn-out or other deferred or purchase consideration that is based upon the achievement of future financial or operational criteria until any such obligation becomes due and payable and is not so paid in accordance with the terms of the applicable agreement and (iv) all obligations under any Qualified Securitization Financing or Receivables Facility, minus (b) Unrestricted Cash and Cash Equivalents of the Borrower and its Subsidiaries in an aggregate amount not exceeding $50,000,000.
“Continuing Director” shall mean, with respect to any period, any individuals (a) who were members of the board of directors or other equivalent governing body of the Borrower on the first day of such period, (b) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (a) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (c) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (a) and (b) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
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“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings correlative thereto.
“Control Agreement” shall mean all Deposit Account Control Agreements and Investment Account Control Agreements.
“Cumulative Retained Excess Cash Flow Amount” shall mean, at any Reference Date, an amount determined on a cumulative basis equal to (i) the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods ending after the Closing Date minus (ii) any Cumulative Retained Excess Cash Flow Amount that has been utilized pursuant to the Available Amount basket or Section 7.5(f). For the avoidance of doubt, the Cumulative Retained Excess Cash Flow Amount shall be deemed as $0 as of the Closing Date.
“Deposit Account Control Agreement” shall mean any agreement executed by a depository bank and the Administrative Agent, for the benefit of the Secured Parties, and acknowledged and agreed to by a Loan Party, in form acceptable to the Administrative Agent in its sole discretion which provides the Administrative Agent with “control” (within the meaning of the UCC) of the applicable Blocked Account.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Interest” shall have the meaning set forth in Section 2.13(c).
“Defaulting Lender” shall mean, subject to Section 2.23(b)(ii), any Lender that (a) has failed to (i) fund all or any portion of any Loan within two Business Days of the date such Loan was required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Banks, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, all Issuing Banks or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a Parent Company that has, after the Closing Date, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.23(b)(ii)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, Swingline Lender and Lender.
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“Designated Non-Cash Consideration” shall mean the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by a Borrower or one of its Subsidiaries in connection with a Disposition that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth such valuation, less the amount of Permitted Investments received in connection with a subsequent disposition of, or other receipt of Permitted Investments in respect of, such Designated Non-Cash Consideration.
“Disposition” shall mean the sale, lease, conveyance or other disposition of Collateral or other Property of the Borrower or any Subsidiary of the Borrower including, without limitation, any Sale/Leaseback Transaction; provided that, solely for purposes of Section 2.12(c), sales or dispositions permitted pursuant to clauses (a), (b) and (k) of Section 7.6 shall not be deemed to be a Disposition (other than a Disposition of real estate assets or constituting the Bounce Sale made pursuant to Section 7.6(k)).
“Disposition Reinvestment Amount” shall have the meaning set forth in Section 2.12(c).
“Disqualified Equity Interests” shall mean, with respect to any Person, any Equity Interests that by their terms (or by the terms of any other Equity Interests into which they are convertible or exchangeable) or otherwise (i) mature (other than as a result of a voluntary redemption or repurchase by the issuer of such Equity Interests) or are subject to mandatory redemption or repurchase (other than solely for Equity Interests that are not Disqualified Equity Interests) pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holder thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior payment in full in cash of the Obligations (other than any Obligations which expressly survive termination, Obligations described in clause (b) of the definition of the “Obligations” and indemnities and other contingent obligations not then due and payable and as to which no claim has been made) and termination of the Commitments and the Letters of Credit); (ii) are convertible into or exchangeable or exercisable for Indebtedness or any Disqualified Equity Interests at the option of the holder thereof; (iii) may be required to be redeemed or repurchased at the option of the holder thereof (other than solely for Equity Interests that are not Disqualified Equity Interests), in whole or in part, in each case specified in clauses (i), (ii) or (iii) above on or prior to the date that is ninety one (91) days after the later of the Initial Revolving Commitment Termination Date and the Term Loan Maturity Date (if applicable); or (iv) provide for mandatory scheduled payments of dividends to be made in cash; provided that, for the avoidance of doubt, the Berkshire Preferred Stock shall not constitute Disqualified Equity Interests.
“Disqualified Institutions” shall mean those Persons that are direct competitors of the Borrower and its Subsidiaries and are primarily engaged in at least one of the same lines of business as the Borrower and its Subsidiaries, to the extent the same are identified in writing by the Borrower to the Administrative Agent by email to JPMDQ_contact@jpmorgan.com from time to time or (b) clearly identifiable solely on the basis of similarity of such Affiliate’s name (together with any such Persons identified in writing by the Borrower to the Administrative Agent after the Closing Date pursuant to Section 5.1(e)(ii)); provided that any additional designation permitted by the foregoing shall not become effective until three (3) Business Days following delivery to the Administrative Agent by email and shall not retroactively apply to any Loan or Commitment of any Person that was not a Disqualified Institution as of the Trade Date with respect to a pending assignment or participation of such Loan or Commitment or to prior assignments or participations of any Loan or Commitment, in each case, in respect of any such pending or previously assigned or participated Loan or Commitment hereunder.
“Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary of the Borrower that is not a Foreign Subsidiary.
“DQ List” shall have the meaning set forth in Section 5.1(e).
“EBITDA Percentage” shall mean, as of the date of the consummation of any sale or disposition of assets (which may include the Equity Interests of a Subsidiary owning the assets to be sold or otherwise disposed of) by the Borrower or any of its Subsidiaries pursuant to clause (h) or (i) of Section 7.6, the ratio, expressed as a percentage (rounded upwards, if necessary, to the next 1/100 th of 1%), obtained by dividing (a) the portion of Consolidated EBITDA attributable to such assets (or such Equity Interests) of such Person for the most recent Test Period prior to such date by (b) Consolidated EBITDA for such Test Period. For the avoidance of doubt, to the extent EBITDA Percentage is to be tested on a cumulative basis over time (i.e., for more than one asset sale or disposition after the
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Closing Date), the EBITDA Percentage shall be the sum of the EBITDA Percentage for each such asset sale or disposition over the applicable period of time (calculated in each case on an individual basis in accordance with the prior sentence).
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” shall mean any Person that meets the requirements to be an assignee under Section 10.4(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.4(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 10.4(h).
“Environmental Laws” shall mean any and all federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of public health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Substances.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (i) any actual or alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Substances, (iii) any actual or alleged exposure to any Hazardous Substances, (iv) the Release or threatened Release of any Hazardous Substances or (v) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” shall mean, as applied to any Person, any capital stock, membership interests, partnership interests or other equity interests of such Person, regardless of class or designation, and all warrants, options, purchase rights, conversion or exchange rights, voting rights, calls or claims of any character with respect thereto.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” shall mean any trade or business, which, together with the Borrower or any Subsidiary of the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (i) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (ii) the failure of any Plan to meet the minimum funding standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (iii) the filing pursuant to Section 412(c) of the Code or Section 302(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (iv) the incurrence by the Borrower, any Subsidiary or any ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (v) the receipt by the Borrower, any Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the incurrence by the Borrower, any Subsidiary or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower, any Subsidiary or any ERISA
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Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” shall have the meaning provided in Article VIII.
“Event of Loss” shall mean (a) with respect to any Collateral or any other Property of the Borrower or any Subsidiary, any of the following: (i) any loss, destruction or damage of such Property; or (ii) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such asset or the requisition of the use of such asset and (b) the occurrence of any event, condition or circumstance pursuant to which the Borrower or any of its Subsidiaries are or become entitled to receive amounts as a result of an insurance policy for business interruption.
“Event of Loss Reinvestment Amount” shall have the meaning set forth in Section 2.12(d).
“Excess Cash Flow” shall mean, for any Fiscal Year of the Borrower, an amount equal to, (a) the sum of: (i) Consolidated EBITDA for such Fiscal Year plus (ii) the net decrease in Working Capital during such Fiscal Year minus (b) the sum of the following (without duplication and determined on a consolidated basis for the Borrower and its Subsidiaries): (i) Consolidated Income Tax Expense paid in cash (less cash refunds received) during such Fiscal Year; (ii) the aggregate Consolidated Interest Expense paid in cash during such Fiscal Year; (iii) scheduled repayments of principal in respect of Indebtedness (for purposes of this definition, ‘principal’ shall include the principal component of payments for such period in respect of Capital Lease Obligations) paid in such Fiscal Year; (iv) the amount of Permitted Acquisitions and Investments made pursuant to Sections 7.4(e) and 7.4(f) and Restricted Payments made pursuant to Sections 7.5(b) and 7.5(c) in cash during such period (excluding the portion, if any, of such Permitted Acquisitions, Investments and Restricted Payments funded with (x) the proceeds of the incurrence of long term Indebtedness, (y) the proceeds of Equity Interests or a capital contribution and (z) the proceeds of any disposition of assets outside the ordinary course of business or other proceeds not included in Consolidated Net Income); (v) Capital Expenditures made during such Fiscal Year which are not financed with Indebtedness (provided, that, to the extent the proceeds of any capital asset that is sold or disposed of pursuant to Section 7.6(j) are used for the purpose of acquiring replacement capital assets for those so sold or disposed of, such replacement capital assets (to the extent they would otherwise constitute Capital Expenditures) shall not constitute Capital Expenditures for purposes of this clause (v)); (vi) all other items added back to Consolidated EBITDA pursuant to (and subject to the limitations in) the definition of Consolidated EBITDA to the extent paid in cash during such Fiscal Year; (vii) all amounts added back to Consolidated EBITDA pursuant to clause (iv) of the definition thereof; (viii) the net increase in Working Capital during such Fiscal Year and (ix) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any Subsidiary pursuant to binding contracts (the “Contract Consideration”) entered into during such period relating to Permitted Acquisitions, Investments permitted pursuant to this Agreement or Capital Expenditures to be consummated or made within six (6) months of the date of determination; provided that any amounts deducted from Excess Cash Flow in connection with this clause (ix) in any Fiscal Year shall be added back in the subsequent Fiscal Year to the extent such transaction has not been consummated within such six-month period.
“Excess Cash Flow Period” shall mean each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2025.
“Excluded Accounts” shall mean (i) any Immaterial Account, (ii) the Restricted Cash Deposit Account and (iii) any account set forth in clause (iii) of the definition of Excluded Property.
“Excluded Property” has the meaning set forth in the Security Agreement.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible
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contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the applicable Commitment (or, if such Lender did not fund the applicable Loan pursuant to a prior commitment, on the date such Lender acquired the applicable interest in such Loan), other than pursuant to an assignment request by the Borrower under Section 2.26 or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its Applicable Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” shall have the meaning set forth in the recitals of this Agreement.
“Existing First Lien Net Leverage Ratio” shall mean “First Lien Net Leverage Ratio” as defined in the Existing Credit Agreement (including with respect to any other defined terms used therein) immediately prior to the Closing Date.
“Existing Letters of Credit” shall mean the letters of credit originally issued under the Existing Credit Agreement and as set forth on Schedule III hereto.
“Existing Revolving Facility” shall mean the Revolving Facility (as defined under the Existing Credit Agreement).
“Existing Tranche B-2 Term Loans” shall mean the Tranche B-2 Term Loans (as defined under the Existing Credit Agreement).
“Existing Tranche B-3 Term Loans” shall mean the Tranche B-3 Term Loans (as defined under the Existing Credit Agreement).
“Exit Consent” shall have the meaning set forth in the definition of “Incremental Incurrence Conditions”.
“Extended Revolving Commitment” shall have the meaning set forth in Section 2.28.
“Extended Revolving Loans” shall have the meaning set forth in Section 2.28.
“Extended Term Loans” shall have the meaning set forth in Section 2.28.
“Extending Revolving Credit Lenders” shall have the meaning set forth in Section 2.28.
“Extending Term Loan Lenders” shall have the meaning set forth in Section 2.28.
“Extension” shall have the meaning set forth in Section 2.28.
“Extension Offer” shall have the meaning set forth in Section 2.28.
“Facility” shall mean, individually, each of the Term Loan Facility, the Initial Revolving Facility and the Non-Extended Revolving Facility; and the Term Loan Facility, the Initial Revolving Facility and the Non-Extended Revolving Facility are collectively referred to herein as the “Facilities.”
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“FASB ASC” shall mean the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or successor version described above), and any intergovernmental agreement, treaty or convention among Governmental Authorities (and any related legislation, regulations or official administrative guidance) implementing the foregoing.
“FCC” shall mean the Federal Communications Commission or any Governmental Authority substituted therefor.
“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the NYFRB on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, with respect to any Loans, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Financial Covenants” shall mean the financial covenants set forth in Section 6.1 and Section 6.2.
“First Lien Intercreditor Agreement” shall mean that certain Closing Date Intercreditor Agreement dated as of January 7, 2021, among the Borrower, Wells Fargo Bank, National Association, as the initial credit agreement administrative agent, the Senior Secured Notes Collateral Agent and the Loan Parties party thereto, as amended and supplemented by the Closing Date ICA Amendment to, among other things, join the Administrative Agent and as further amended, restated, amended and restated or otherwise modified from time to time, including to add one or more classes of obligations permitted hereunder to be secured on a pari passu basis with the Liens securing the Secured Obligations.
“First Lien Gross Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt (without giving effect to clause (b) thereof) of such date that is secured by a Lien on any assets (including Equity Interests) of the Borrower and/or its Subsidiaries that rank pari passu with the liens on the Collateral securing the Secured Obligations to (ii) the quotient of: (x) Consolidated EBITDA for the eight (8) consecutive Fiscal Quarters ending on or immediately prior to such date divided by (y) two (2).
“First Lien Net Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt of such date that is secured by a Lien on any assets (including Equity Interests) of the Borrower and/or its Subsidiaries that rank pari passu with the liens on the Collateral securing the Secured Obligations to (ii) the quotient of: (x) Consolidated EBITDA for the eight (8) consecutive Fiscal Quarters ending on or immediately prior to such date divided by (y) two (2).
“Fiscal Quarter” shall mean any fiscal quarter of the Borrower.
“Fiscal Year” shall mean any fiscal year of the Borrower.
“Foreign Lender” shall mean a Lender that is not a U.S. Person.
“Foreign Subsidiary” shall mean any direct or indirect Subsidiary of the Borrower that is organized under the laws of a jurisdiction other than the United States of America, any state thereof or the District of Columbia.
“FRB” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Fronting Arrangement” shall mean that certain customary arrangement whereby the Fronting Lender shall fund the Tranche B-2 Term Loans and Tranche B-3 Term Loans on the Closing Date, as contemplated by the Transaction Support Agreement and the Backstop Commitment Letter and in accordance with that certain Master
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Consent to Assignment, dated as of the Closing Date and signed by the Administrative Agent, the Fronting Lender and the Borrower.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s LC Exposure other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Swingline Exposure other than Swingline Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Fronting Lender” shall mean Barclays Bank PLC.
“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3.
“Global Intercompany Note” shall mean the Global Intercompany Note, among the Borrower and its Subsidiaries (other than any Securitization Subsidiary).
“Governmental Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” shall mean each of the Subsidiary Loan Parties and the Borrower (other than, with respect to the Borrower, the Secured Obligations of the Borrower).
“Hazardous Substances” shall mean any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
“Hedge Agreement” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap
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transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement.
“Hedge Bank” shall mean any Person that, (a) at the time it enters into a Hedge Agreement with a Loan Party permitted hereunder, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender (including on the Closing Date), is a party to a Hedge Agreement with a Loan Party, in each case in its capacity as a party to such Hedge Agreement.
“Hedging Transaction” of any Person shall mean any transaction of such Person that is the subject of a Hedge Agreement.
“Immaterial Account” shall mean petty cash accounts, trust accounts, payroll accounts and employee benefit accounts so long as the cash and cash equivalents held or maintained in such petty cash accounts, trust accounts, payroll accounts and employee benefit accounts does not at any time exceed (i) $500,000 in any single such account and (ii) $2,500,000 in the aggregate for all such accounts.
“Immaterial Subsidiary” shall mean any direct or indirect Subsidiary of the Borrower that is not a Material Subsidiary; provided that (i) total assets of all Immaterial Subsidiaries in the aggregate shall not exceed 2.5% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of the last day of the most recent Fiscal Quarter at such time and (ii) the revenues or net income (determined on a consolidating basis) of all Immaterial Subsidiaries in the aggregate shall not exceed 2.5% of the total revenues or net income of the Borrower and its Subsidiaries on a consolidated basis for the 12-month period ending on the last day of the most recent Fiscal Quarter at such time.
“Increased Amount Date” shall have the meaning set forth in Section 2.24.
“Incremental Amendment” shall have the meaning set forth in Section 2.24(c).
“Incremental Incurrence Conditions” shall mean each of the following conditions (which, for the avoidance of doubt shall be applicable to New Loans and the corresponding New Commitments):
(i)all terms applicable to such New Loans (other than (i) as expressly permitted in Sections 2.24 or 7.1(k), as applicable or (ii) relating to original issue discount, upfront fees, interest rates or other pricing and economic terms (subject to the MFN Protection where applicable)) shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries, taken as a whole, than the terms applicable to the Tranche B-2 Term Loans and Tranche B-3 Term Loans (except to the extent any such covenants or other terms apply solely to the period after the latest then-applicable Term Loan Maturity Date), as determined by the Borrower in good faith;
(ii)such New Loans shall not be provided by any Affiliate of the Borrower;
(iii)to the extent incurred as a separate Class of Loans or incurred outside of this Agreement, such New Loans will be subject to (x) the First Lien Intercreditor Agreement with respect to New Loans secured by Liens on Collateral that rank pari passu in right of security with the Liens thereon securing the Secured Obligations or (y) a Junior Lien Intercreditor Agreement with respect to New Loans secured by Liens on Collateral that rank junior in right of security to the Liens thereon securing the Secured Obligations;
(iv)there shall be no obligor or guarantor in respect of any New Loans that is not a Loan Party;
(v)such New Loans shall not be secured by any assets not securing the Obligations;
(vi)such New Loans shall not be incurred with the purpose to influence voting thresholds under this Agreement or effectuate an amendment to this Agreement or any other Loan Document using the consent
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of Lenders who would no longer be Lenders after the consummation of such Amendment (any such consent, an “Exit Consent”);
(vii)in the case of New Loans that rank pari passu in right of security with the Liens on the Collateral securing the Secured Obligations, such New Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) with the Tranche B-2 Term Loans and Tranche B-3 Term Loans with respect to any mandatory or voluntary prepayments; and
(viii)in the case of New Loans in the form of Term Loans that rank junior in right of security with the Liens on the Collateral securing the Secured Obligations, such New Loans shall not allow for amortization or mandatory prepayments prior to the payment in full in cash of the Obligations in respect of Tranche B-2 Term Loans and Tranche B-3 Term Loans.
“Incremental Starter Basket” means, at the time of determination, (x) $50,000,000, less (y) the amount of the Aggregate Revolving Credit Exposure in excess of $225,000,000; provided that notwithstanding anything to the contrary herein, if the Borrower establishes New Commitments or incurs New Loans in reliance on clause (x) above, the amount by which Aggregate Revolving Credit Exposure may exceed $225,000,0000 shall at all times be reduced by the amount of such New Commitments, New Revolving and/or New Term Loans, and the Borrower shall be prohibited from incurring and maintaining such additional Aggregate Revolving Credit Exposure hereunder in excess of such amount. The immediately preceding proviso above shall be solely for the benefit of the Term Lenders, and any amendment or modification thereto, or any Default or Event of Default arising any violation thereof, shall be subject to the requisite consent of the Term Lenders only in accordance with Section 10.2.
“Incur” shall mean issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Equity Interests of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness” of any Person shall mean, without duplication (i) all obligations of such Person for borrowed money (including, all 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), (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables and obligations regarding programming rights incurred in the ordinary course of business; provided, that for purposes of Section 8.1(g), trade payables and obligations regarding programming rights overdue by more than 120 days shall be included in this definition except to the extent that any of such trade payables and obligations regarding programming rights are being disputed in good faith and by appropriate measures), (iv) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of Indebtedness described in clauses (i) through (vi) above and clauses (x) and (xi) below, (viii) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, provided, that if such obligation shall not have been assumed by such Person and is otherwise limited in recourse only to property of such Person securing such obligation, the amount of such obligation shall not exceed the lesser of (i) the fair market value of the property of such Person securing such obligation as determined by such Person in good faith and (ii) the amount of such obligation so secured, (ix) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Equity Interests of such Person, but excluding any other obligations under any Equity Interests that are not Disqualified Equity Interests, (x) Off-Balance Sheet Liabilities, and (xi) all obligations of such Person under any Hedge Agreement. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor. For purposes of this Agreement, the amount of any Indebtedness referred to in clause (xi) of the preceding sentence shall be amounts, including any termination payments, required to be paid to a counterparty after giving effect to any contractual netting arrangements, and not any notional amount with regard to which payments may be calculated.
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“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” shall have the meaning set forth in Section 10.3(b).
“Initial Revolving Commitment” shall mean with respect to each Initial Revolving Credit Lender, the commitment of such Lender to make Initial Revolving Loans to the Borrower and to acquire participations in Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule II, or in the case of a Person becoming a Lender after the Closing Date through an assignment of an existing Initial Revolving Commitment, the amount of the assigned “Initial Revolving Commitment” as provided in the Assignment and Acceptance or joinder agreement, as applicable, executed by such Person.
“Initial Revolving Commitment Termination Date” shall mean the earliest of (i) July 7, 2027 (or, in the case of this clause (i), solely with respect to any Extended Revolving Loans or Replacement Revolving Loans, the termination date for the related Extended Revolving Commitments or Replacement Revolving Commitments, as applicable), (ii) the date on which Initial Revolving Facility Springing Termination Date occurs, (iii) the date on which the Initial Revolving Commitments are terminated pursuant to Section 2.8 and (iv) the date on which all Initial Revolving Loans outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Initial Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Initial Revolving Loans, Swingline Loans and LC Exposure.
“Initial Revolving Credit Lender” shall mean each Lender with an Initial Revolving Commitment or, to the extent the Initial Revolving Commitments have been terminated, an Initial Revolving Loan or other Initial Revolving Credit Exposure.
“Initial Revolving Facility” shall mean the extensions of credit made hereunder by Lenders holding an Initial Revolving Commitment.
“Initial Revolving Facility Availability Period” shall mean the period from the Closing Date to but excluding the Initial Revolving Commitment Termination Date.
“Initial Revolving Facility Springing Termination Date” shall mean the date that is (i) 180 days before the maturity date of the 2027 Unsecured Notes (including any refinancing thereof that matures less than 180 days after the then latest termination date of the Initial Revolving Facility) solely if more than $50,000,000 in aggregate principal amount of such 2027 Unsecured Notes (or any refinancing thereof that matures less than 180 days after the then latest termination date of the Initial Revolving Facility) remains outstanding on such date or (ii) if $50,000,000 or less (but greater than $0) in aggregate principal amount of such 2027 Unsecured Notes (or any refinancing thereof that matures less than 180 days after the then latest termination date of the Initial Revolving Facility) remains 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 termination date of the Initial 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 within three (3) Business Days of receiving a written request from the Administrative Agent that it has sufficient liquidity (excluding any portion of the A/R Securitization Facility but including, for the avoidance of doubt, undrawn Revolving Commitments) to repay or refinance such remaining portion of the 2027 Unsecured Notes.
“Initial Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender) to the Borrower under its Initial Revolving Commitment, which may either be a Base Rate Loan or a Term SOFR Loan.
“Intellectual Property” shall mean (i) patents, trademarks, service marks, trade names, logos, domain names, copyrights, designs and trade secrets, (ii) applications for and registrations of such patents, trademarks, service marks, trade names, logos, domain names, copyrights and designs, (iii) know-how, inventions, whether or not patentable, intellectual property rights in computer software programs and software applications (including
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source code and object code), and intellectual property rights in databases and data collections, (iv) intellectual property rights in Websites and (v) any other similar type of proprietary intellectual property right.
“Interest Period” shall mean with respect to (i) any Swingline Borrowing, such period as the Swingline Lender and the Borrower shall mutually agree and (ii) any Term SOFR Borrowing and ending on the numerically corresponding calendar day in the calendar month that is a period of one, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day would fall in the next calendar month, in which case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond (A) the Revolving Commitment Termination Date with respect to Revolving Loans or (B) the Term Loan Maturity Date with respect to the applicable Term Loans.
“Investment Account Control Agreement” means any agreement, in form and substance satisfactory to the Administrative Agent in its sole discretion, executed by a Loan Party, the Administrative Agent and the securities intermediary maintaining such Loan Party’s Investment Account.
“Investment Accounts” shall mean, as to any Person, any and all “securities accounts” (as defined in the UCC), brokerage accounts and commodities accounts now owned or hereafter acquired by such Person, or in which such Person has or acquires any rights.
“Investments” shall have the meaning as set forth in Section 7.4.
“IRS” shall mean the United States Internal Revenue Service.
“Issuing Bank” shall mean , collectively, (a) with respect to the Existing Letters of Credit, Wells Fargo Bank, National Association, (b) each of JPMorgan, Bank of America, N.A., Morgan Stanley Senior Funding, Inc. and Wells Fargo Bank, National Association, in its capacity as an issuer of Letters of Credit hereunder and (c) any other Initial Revolving Credit Lender reasonably acceptable to the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) that agrees to issue Letters of Credit pursuant hereto, in each case in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“JPMorgan” shall mean JPMorgan Chase Bank, N.A.
“Joint Venture” means (a) any Person that would constitute an “equity method investee” of the Borrower or any of its Subsidiaries and (b) any Person in whom the Borrower or any of its Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary; provided that (x) such Joint Venture is established or acquired for bona fide business purposes and (y) the owners of the Equity Interests of such Person (other than Holdings, the Borrower or any wholly-owned Subsidiary of the Borrower) are non-Affiliate third parties.
“Junior Debt” shall mean any Indebtedness of the Borrower or any Subsidiary (other than intercompany Indebtedness) that is (i) subordinated in right of payment to the Obligations, (ii) unsecured and/or (iii) secured by a Lien that ranks junior in priority to the Liens securing the Secured Obligations.
“Junior Debt ECF Basket” shall have the meaning set forth in Section 7.5(f).
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“Junior Lien Intercreditor Agreement” means a customary intercreditor agreement substantially in the form of either (i) the Form of Junior Lien Intercreditor Agreement attached to the Exhibit F of the Senior Secured Notes Indenture in effect as of the Closing Date or (ii) another junior lien intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower and subject to the terms and limitations hereof.
“Latest Maturity Date” shall mean, at any date of determination, the latest Term Loan Maturity Date in respect of any Class of Term Loans, in each case, then in effect on such date of determination.
“LC Commitment” shall mean, with respect to each Issuing Bank, its commitment to issue Letters of Credit in an aggregate face amount not to exceed the amount set forth under the heading “LC Commitment” opposite such Lender’s name on Schedule II or in any incremental amendment or in the Assignment and Acceptance pursuant to which such Issuing Bank became a party hereto, as applicable. The aggregate LC Commitment as of the Closing Date was $25,000,000.
“LC Disbursement” shall mean a payment made by the applicable Issuing Banks pursuant to a Letter of Credit.
“LC Documents” shall mean all applications, agreements and instruments relating to the Letters of Credit (but excluding the Letters of Credit).
“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Initial Revolving Credit Lender shall be its Pro Rata Share of the total LC Exposure at such time.
“Lead Arrangers” shall mean (i) JPMorgan Chase Bank, N.A., (ii) Bank of America, N.A., (iii) Truist Securities Inc. and (iv) Morgan Stanley Senior Funding, Inc., each in their capacity as a joint bookrunner and joint lead arranger under the New Revolving Facility.
“Lender Affiliate” shall mean, as to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with such Person. For the purposes of this definition, “Control” shall mean the power, directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by control, by contract or otherwise. The terms “Controlling,” “Controlled by,” and “under common Control with” shall have the meanings correlative thereto.
“Lenders” shall have the meaning assigned to such term in the introductory paragraph of this Agreement and shall include the Revolving Credit Lenders, the Term Loan Lenders, where appropriate, the Swingline Lender and each New Lender that joins this Agreement pursuant to Section 2.24.
“Letter of Credit” shall mean any stand-by letter of credit issued pursuant to Section 2.22 by any Issuing Bank for the account of the Borrower pursuant to the LC Commitment.
“Letter of Credit Reserve Account” shall mean any account maintained by the Administrative Agent the proceeds of which shall be applied as provided in Section 8.2(d).
“Liability Management Transactions” shall mean any refinancing, retirement, exchange, extension, amendment, repurchase, replacement, or defeasance of any existing Indebtedness of the Borrower or any Subsidiary (including the Revolving Loans and the Term Loans) with any other Indebtedness, equity or quasi-equity (or the proceeds of any other Indebtedness, equity or quasi-equity) that is/are contractually, structurally or temporally senior (including as to Lien priority with respect to any collateral, or by means of additional collateral or additional guarantors, obligors or other credit support) to any of the Revolving Loans or the Term Loans (including, for the avoidance of doubt, through any incurrence of Indebtedness, equity or quasi-equity by a Person that is not a Loan Party, whether or not such Person owns any assets or property).
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“License” shall mean any authorization, permit, consent, special temporary authorization, franchise, ordinance, registration, certificate, license, agreement or other right filed with, granted or issued by or entered into with a Governmental Authority (including the FCC) which permits or authorizes the acquisition, construction, ownership or operation of a Station or any part thereof.
“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of any of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).
“Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), the Global Intercompany Note, the Subsidiary Guaranty Agreement, the Control Agreements, all Collateral Access Agreements, the LC Documents, the Security Documents, any Non-Disturbance Agreement, the First Lien Intercreditor Agreement, the Closing Date ICA Amendment, any Junior Lien Intercreditor Agreement, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates and any and all other instruments, agreements, documents and writings executed by and among any Loan Party, the Administrative Agent or any Lender, the Swingline Lender or any Issuing Bank in connection with any of the foregoing; provided, however, that, notwithstanding the foregoing, no Secured Hedge Agreement and no Secured Cash Management Agreement shall constitute a Loan Document.
“Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean all Revolving Loans, Term Loans (if any) and Swingline Loans in the aggregate or any of them, as the context shall require.
“Majority Initial Revolving Credit Lenders” shall mean, at any time, Initial Revolving Credit Lenders holding more than 50% of the sum of (i) the aggregate outstanding amount of unused Initial Revolving Commitments, if any, at such time, plus (ii) the aggregate outstanding amount of Initial Revolving Exposure, if any, at such time. The Commitments, Loans or LC Exposure of any Defaulting Lender shall be disregarded in determining Majority Initial Revolving Credit Lenders at any time.
“Majority Non-Extended Revolving Credit Lenders” shall mean, at any time, Non-Extended Revolving Credit Lenders holding more than 50% of the sum of (i) the aggregate outstanding amount of unused Non-Extended Revolving Commitments, if any, at such time, plus (ii) the aggregate outstanding amount of Non-Extended Revolving Exposure, if any, at such time. The Commitments or Loans of any Defaulting Lender shall be disregarded in determining Majority Non-Extended Revolving Credit Lenders at any time.
“Majority Term Loan Lenders” shall mean, at any time, Non-Defaulting Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Term Loans held by all Non-Defaulting Lenders at such time.
“Majority Tranche B-2 Term Loan Lenders” shall mean, at any time, Non-Defaulting Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Tranche B-2 Term Loans held by all Non-Defaulting Lenders at such time.
“Majority Tranche B-3 Term Loan Lenders” shall mean, at any time, Non-Defaulting Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Tranche B-3 Term Loans held by all Non-Defaulting Lenders at such time.
“Material Adverse Effect” shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on, (i) the business, results of operations, condition (financial or otherwise), assets, operations, liabilities (contingent or otherwise) or properties of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to pay any of their obligations under the Loan Documents or perform any of their obligations under the Loan Documents or (iii) the rights and remedies of the Administrative Agent, the Issuing Banks, the Swingline Lender,
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and the Lenders under any of the Loan Documents (other than as a result of any action or inaction on the part of the Administrative Agent, the Issuing Banks, the Swingline Lender or any other Lender).
“Material Contracts” shall mean, collectively, all contracts, leases, instruments, guaranties, licenses or other arrangements (other than the Loan Documents) to which the Borrower or any Subsidiary of the Borrower is or becomes a party and which are filed or required to be filed with the U.S. Securities and Exchange Commission under Regulation S-K.
“Material Indebtedness” shall mean (a) Indebtedness evidenced by the Senior Unsecured Notes and/or the Senior Secured Notes and (b) Indebtedness (other than the Loans and Letters of Credit) of the Borrower or any of its Subsidiaries, individually or in an aggregate committed or outstanding amount exceeding $25,000,000. For purposes of determining the amount of attributed Indebtedness from Hedge Agreements, the “principal amount” of any Hedge Agreements at any time shall be the Net Mark-to-Market Exposure of such Hedge Agreements.
“Material Intellectual Property” shall mean any Intellectual Property of the Borrower or any of its Subsidiaries that is material to the operation of the business of the Borrower and its Subsidiaries, taken as a whole; provided that any and all FCC Licenses held, owned or exclusively licensed by the Borrower or its Subsidiaries shall be deemed to be Material Intellectual Property for all purposes hereunder or under any other Loan Document.
“Material Subsidiary” shall mean at any time any direct or indirect Subsidiary of the Borrower having: (a) assets (determined on a consolidated basis) in an amount equal to at least 2.5% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of the last day of the most recent Fiscal Quarter at such time; or (b) revenues or net income (determined on a consolidated basis) in an amount equal to at least 2.5% of the total revenues or net income of the Borrower and its Subsidiaries on a consolidated basis for the 12-month period ending on the last day of the most recent Fiscal Quarter at such time.
“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent and the applicable Issuing Banks in their sole discretion.
“Minimum Extension Condition” shall have the meaning set forth in Section 2.28.
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.
“Negative Pledge” shall mean, with respect to any Real Estate, any provision of a document, instrument or agreement (other than any Loan Document) which prohibits, conditions or purports to prohibit or condition the creation or assumption of any Lien on such Real Estate as security for Indebtedness of the Person owning such asset or any other Person; provided, that an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.
“Net Cash Proceeds” shall mean, with respect to any Disposition, Event of Loss or the incurrence by the Borrower or any Subsidiary thereof of any Indebtedness (other than the Obligations), in each case, after the Closing Date, the aggregate amount of cash (including all insurance proceeds) received as a result of such Disposition, Event of Loss or incurrence of such Indebtedness, net of (x) reasonable and customary transaction costs properly attributable to such transaction and payable by the Borrower or such Subsidiary to a non-Affiliate in connection with such Disposition, Event of Loss or the incurrence of any Indebtedness, including, without limitation, sales commissions and underwriting discounts and (y) the amount of all taxes paid (or reasonably estimated to be payable) by the Borrower or such Subsidiary that are directly attributable to such Disposition, Event of Loss or the incurrence of any such Indebtedness.
“Net Mark-to-Market Exposure” of any Person shall mean, as of any date of determination with respect to any Hedging Transaction, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from such Hedging Transaction. “Unrealized losses” shall mean the fair market value of the cost to such
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Person of replacing the subject Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date), and “unrealized profits” shall mean the fair market value of the gain to such Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date).
“Net Proceeds From Equity Issuance” shall mean, with respect to any issuance by the Borrower of Equity Interests (other than Disqualified Equity Interests) to any Person or Persons other than a Subsidiary of the Borrower, the difference between (a) the aggregate amount of cash received in connection with such equity issuance and (b) the aggregate amount of any reasonable and customary legal, underwriting or other fees and expenses incurred in connection with such equity issuance.
“New Commitments” shall have the meaning set forth in Section 2.24(a).
“New Lender” shall have the meaning set forth in Section 2.24(a).
“New Loans” shall mean all New Revolving Loans and New Term Loans.
“New Revolving Commitments” shall have the meaning set forth in Section 2.24(a).
“New Revolving Credit Lender” shall have the meaning set forth in Section 2.24(a).
“New Revolving Loan” shall have the meaning set forth in Section 2.24(a).
“New Term Loan Commitment” has the meaning provided in Section 2.24(a).
“New Term Loan Lender” shall have the meaning set forth in Section 2.24(a).
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender at such time.
“Non-Disturbance Agreement” means any letter agreement among the Administrative Agent and any lenders or providers of capital (or each of their authorized representative) in connection with any Qualified Securitization Financing, in form and substance reasonably satisfactory to the Administrative Agent, including the letter agreement executed by the Administrative Agent on the Closing Date with PNC Bank, National Association and the other parties thereto with respect to the pledge of the Equity Interests of Scripps SPV Midco, LLC.
“Non-Extended Revolving Commitment” shall mean with respect to each Non-Extended Revolving Credit Lender, the commitment of such Lender to make Non-Extended Revolving Loans to the Borrower in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule II, or in the case of a Person becoming a Lender after the Closing Date through an assignment of an existing Non-Extended Revolving Commitment, the amount of the assigned “Non-Extended Revolving Commitment” as provided in the Assignment and Acceptance or joinder agreement, as applicable, executed by such Person.
“Non-Extended Revolving Commitment Termination Date” shall mean the earliest of (i) January 7, 2026, (ii) the date on which the Non-Extended Revolving Commitments are terminated pursuant to Section 2.8 and (iii) the date on which all Non-Extended Revolving Loans outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Non-Extended Revolving Credit Exposure” shall mean, with respect to any Non-Extended Lender at any time, the outstanding principal amount of such Lender’s Non-Extended Revolving Loans.
“Non-Extended Revolving Credit Lender” shall mean each Lender with a Non-Extended Revolving Commitment or, to the extent the Non-Extended Revolving Commitments have been terminated, a Non-Extended Revolving Loan.
“Non-Extended Revolving Facility” shall mean the extensions of credit made hereunder by Lenders holding a Non-Extended Revolving Commitment.
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“Non-Extended Revolving Facility Availability Period” shall mean the period from the Closing Date to but excluding the Non-Extended Revolving Commitment Termination Date.
“Non-Extended Revolving Loan” shall mean a loan made by a Lender to the Borrower under its Non-Extended Revolving Commitment, which may either be a Base Rate Loan or a Term SOFR Loan.“Notes” shall mean, collectively, the Revolving Credit Notes, Term Loan Notes and the Swingline Note.
“Notice of Borrowing” shall mean a request by the Borrower for a Borrowing in accordance with Section 2.4, which shall be substantially in the form agreed between the Administrative Agent and the Borrower.
“Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as provided in Section 2.7(b),which shall be substantially in the form agreed between the Administrative Agent and the Borrower.
“Notice of Swingline Borrowing” shall mean a request by the Borrower for a Swingline Borrowing in accordance with Section 2.5, which shall be substantially in the form agreed between the Administrative Agent and the Borrower.
“NYFRB” shall mean the Federal Reserve Bank of New York.
“NYFRB Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website” shall mean the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” shall mean, whether now in existence or hereafter arising, all amounts owing by the Borrower or any other Loan Party to the Administrative Agent, any Issuing Bank, any Lender (including the Swingline Lender and each New Lender) and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.5 and, in each case, their respective successors and permitted assigns, pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit, including without limitation, all principal, interest and premiums (including any interest and premiums accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower or any other Loan Party, whether or not a claim for post-filing or post-petition interest or premiums is allowed or allowable in such proceeding, all reimbursement obligations, fees and premiums (including the Prepayment Premium and the Term Loan Commitment Premium), expenses, indemnification and reimbursement payments, costs and expenses (including all reasonable fees and expenses of counsel to the Administrative Agent, any Issuing Bank, any Lender (including the Swingline Lender and each New Lender) and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.5 and, in each case, their respective successors and permitted assigns, incurred pursuant to this Agreement or any other Loan Document) and indemnification obligations provided pursuant to Section 10.3 (subject to the limitations set forth therein), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings of any of the foregoing (in each case, including any interest, fees, premiums and other amounts accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower or any other Loan Party, whether or not a claim for post-filing or post-petition interest, fees or other amounts are allowed or allowable in such proceeding).
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person, (iii) any Synthetic
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Lease Obligation or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.
“Organizational Documents” shall mean (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, certificate of formation or comparable documents, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.26).
“Outbound Investment Rules” shall mean the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101, et seq.
“Parent Company” shall mean, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
“Participant” shall have the meaning set forth in Section 10.4(d).
“Participant Register” shall have the meaning set forth in Section 10.4(e).
“Patriot Act” shall mean the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended and in effect from time to time.
“Payment” shall have the meaning set forth in Section 9.16(c)(i).
“Payment Notice” shall have the meaning set forth in Section 9.16(c)(ii).
“Payment Office” shall mean the office of the Administrative Agent located at 500 Stanton Christiana Road, NCC5, Floor 01 Newark, DE 19713, or such other location as to which the Administrative Agent shall have given written notice to the Borrower and the other Lenders.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.
“Perfection Certificate” shall mean a certificate or certificates of the Loan Parties in substantially the form of Exhibit F hereto.
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“Periodic Term SOFR Determination Day” shall have the meaning set forth in the definition of “Term SOFR”.
“Permitted Acquisition” shall have the meaning set forth in Section 7.3(b).
“Permitted Acquisition Target” shall mean, with respect to any Acquisition, the Person (i) whose assets or business is the target of such Acquisition or (ii) the majority of whose Equity Interests are the target of such Acquisition.
“Permitted Holders” shall mean all lineal descendants of Robert Paine Scripps or John Paul Scripps, or trusts for the benefit of such lineal descendants or their spouses.
“Permitted Investments” shall mean:
(i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody’s and in either case maturing within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above;
(v) mutual funds investing solely in any one or more of the Permitted Investments described in clauses (i) through (iv) above; and
(vi) other short term, liquid investments approved by the Administrative Agent.
“Permitted Liens” shall mean, as applied to any Person:
(a) Liens created pursuant to the Loan Documents to secure the Secured Obligations;
(b) (i) Liens on Real Estate for real estate taxes not yet delinquent and (ii) Liens for taxes, assessments, judgments, governmental charges or levies, or claims not yet delinquent or the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on such Person’s books to the extent required by GAAP;
(c) Liens of carriers, warehousemen, mechanics, laborers, suppliers, workers and materialmen incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith, if such reserve or appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection with worker’s compensation and unemployment insurance or other types of social security benefits;
(e) Easements, rights-of-way, restrictions (including zoning or deed restrictions), and other similar encumbrances on the use of real property which in the reasonable opinion of the Administrative Agent do not materially interfere with the ordinary conduct of the business of such Person;
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(f) Deposits to secure the performance of bids, trade contracts, tenders, sales, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) Liens on assets of the Borrower or any of its Subsidiaries existing as of the Closing Date which are set forth on Schedule 7.2;
(h) statutory Liens in favor of landlords with respect to inventory at leased premises in a state that provides for statutory Liens in favor of landlords or Liens arising under leases entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(i) (i) Liens with respect to property or assets of any Subsidiary that is not a Loan Party securing Indebtedness of a Subsidiary that is not a Loan Party permitted under Section 7.1(o) or Section 7.1(n), so long as such Liens does not secure any assets of a Loan Party and (ii) Liens with respect to Equity Interests in Joint Ventures securing Indebtedness permitted under Section 7.1(n);
(j) judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(k) Liens of (i) a collecting bank arising in the ordinary course of business under Section 4-210 of the Uniform Commercial Code as in effect in the relevant jurisdiction and (ii) any depositary bank in connection with statutory, common law and contractual rights of set-off and recoupment with respect to any deposit account of the Borrower or any Subsidiary thereof, in each case, other than any deposit account with deposits intended as cash collateral;
(l) Liens on insurance policies and the proceeds thereof in favor of the provider of such insurance policies securing the financing of the premiums with respect thereto;
(m) leases, subleases, non-exclusive licenses or non-exclusive sub-licenses 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 Subsidiaries, taken as a whole or (ii) secure any Indebtedness;
(n) Liens in favor of a seller solely on any cash earnest money deposits or indemnity escrows made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Permitted Acquisition; and
(o) Liens evidenced by precautionary UCC financing statements relating to operating leases, bailments and consignments of personal property;
“Permitted Refinancing” shall mean, with respect to any Person, any modification (other than a release of such Person), refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, replaced, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, replacement, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.1(c), such modification, refinancing, refunding, renewal or extension has a final stated maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) such modified, refinanced, refunded, renewed or extended Indebtedness shall only be Guaranteed by the Borrower or Subsidiaries of the Borrower that are otherwise guarantors of the Indebtedness being modified, refinanced, refunded, renewed or extended at the time such modification, refinancing, refund, renewal or extension of Indebtedness occurs, (d) such modified, refinanced, refunded, renewed or extended Indebtedness shall not be secured by any property or assets other than the property or assets that were collateral (and then only with the same or lesser priority) for the Indebtedness being modified, refinanced, refunded, renewed or extended, in each case, at the time of
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such modification, refinancing, refunding, renewal or extension (unless in connection with an acquisition to the extent any additional property or assets constituting collateral for the modified, refinanced, refunded, renewed or extended Indebtedness also secure the Secured Obligations in accordance with the terms herein), and (e) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Secured Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Secured Obligations on terms at least as favorable, taken as a whole (as determined by the Administrative Agent), to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended.
“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” shall have the meaning assigned to such term in Section 10.4(h)(i).
“Portal” shall mean IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system.
“Prime Rate” shall mean the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Prepayment Event” shall have the meaning assigned to such term in Section 2.11(b).
“Prepayment Premium” shall have the meaning assigned to such term in Section 2.11(b).
“Pro Forma Basis” shall mean, in connection with any calculation of the First Lien Gross Leverage Ratio, Total Net Leverage Ratio or the Senior Secured Net Leverage Ratio, the calculation thereof after giving effect on a pro forma basis to (x) the Incurrence or repayment of any Indebtedness after the first day of the relevant period of eight (8) consecutive Fiscal Quarters (the “Relevant Period”) (including any Incurrence of Indebtedness to finance a transaction or payment giving rise for the need to make such determination) as if such Indebtedness had been Incurred or repaid on the first day of such Relevant Period (and, in the case of Incurrence, remains outstanding on the date of measurement), (y) the making of any Restricted Payment, Investment or Permitted Acquisition after the first day of the Relevant Period as if such Restricted Payment, Investment or Permitted Acquisition had been made on the first day of such Relevant Period and (z) the sale or other disposition of assets after the first day of the Relevant Period as if such asset sale had been made as of the first day of such Relevant Period.
“Pro Rata Share” shall mean, with respect to (i) any Initial Revolving Credit Lender at any time, a percentage, the numerator of which shall be such Lender’s Initial Revolving Commitment (or if such Initial Revolving Commitments have been terminated or expired or the Initial Revolving Loans have been declared to be due and payable, such Lender’s Initial Revolving Credit Exposure) and the denominator of which shall be the sum of all Initial Revolving Credit Lenders’ Initial Revolving Commitments (or if such Initial Revolving Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Initial Revolving Credit Exposure of all Initial Revolving Credit Lenders funded under such Initial Revolving Commitments), (ii) any Non-Extended Revolving Credit Lender at any time, a percentage, the numerator of which shall be such Lender’s Non-Extended Revolving Commitment (or if such Non-Extended Revolving Commitments have been terminated or expired or the Non-Extended Revolving Loans have been declared to be due and payable, such Lender’s Non-Extended Revolving Credit Exposure) and the denominator of which shall be the sum of all Non-Extended Revolving Credit Lenders’ Non-Extended Revolving Commitments (or if such Non-Extended Revolving Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Non-
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Extended Revolving Credit Exposure of all Non-Extended Revolving Credit Lenders funded under such Non-Extended Revolving Commitments) and (iii) any Term Loan Lender at any time, a percentage, the numerator of which shall be the aggregate outstanding principal amount of Term Loans of a particular Class held by such Lender and the denominator of which shall be the aggregate outstanding principal amount of all Term Loans of such Class at such time. A Lender’s Pro Rata Share with respect to any Letter of Credit, LC Disbursement, LC Exposure, Swingline Loan or Swingline Exposure shall be determined as to such Lender in its capacity as an Initial Revolving Credit Lender in accordance with clause (i) above.
“Property” shall mean any real property or personal property, plant, building, facility, structure, underground storage tank or unit, equipment, inventory or other asset owned, leased or operated by the Borrower or any Subsidiary (including, without limitation, any surface water thereon or adjacent thereto, and soil and groundwater thereunder).
“Protected Revolver Terms” shall mean the following terms under this Agreement and/or other Loan Documents:
(a)the definition of “Protected Revolver Terms” and the definitions of “Available Amount”, “Available Amount Conditions”, “bona fide business purpose”, “Cash Netting” (solely as it relates to the Financial Covenant in Section 6.2), “Consolidated Net Income” (solely as it relates to the Financial Covenant in Section 6.2), “Consolidated EBITDA” (solely as it relates to the Financial Covenant in Section 6.2), “Consolidated Total Debt” (solely as it relates to the Financial Covenant in Section 6.2), “Double-Dip Protection”, “Incremental Incurrence Conditions”, “Incremental Amount”, “Refinancing Notes”, “Qualified Securitization Financing”, “Receivables Facility”, “Securitization Assets”;
(b)[reserved];
(c)application of Incremental Incurrence Conditions and Default or Event of Default condition with respect to Incremental Amendments;
(d)Section 2.12(c)(ii) and Section 2.12(c)(iii);
(e)Section 2.24(b), Section 2.24(c)(ii), Section 2.24(c)(iii), Section 2.24(e) and Section 2.24(g);
(f)limitations on payment of principal amounts under the 2027 Unsecured Notes with Revolving Loans in Section 5.9;
(g)requirement to apply the MFN Protections to certain Indebtedness pursuant to Section 2.24(c);
(h)restrictions on incurrence of Indebtedness under Section 7.1(f) and Section 7.1(k) as it relates to any capacity to incur Indebtedness by a Subsidiaries that are not Loan Parties;
(i)the ratios set forth in Section 2.24(a)(y), Section 7.1(f)(i) and Section 7.1(k)(ii).
(j)Default or Event of Default condition with respect to Indebtedness incurred pursuant to Section 7.1(f) and Section 7.1(k);
(k)Section 7.1(f)(ii), (xi) and(xii), Section 7.1(g)(x), the proviso in Section 7.1(l), the proviso in Section 7.1(n), the proviso in Section 7.1(o), last paragraph of Section 7.1;
(l)any express requirement for any transaction or joint venture to be for a “bona fide business purpose” and/or with an “unaffiliated third party”
(m)[reserved];
(n)Clause (i)(i) of the Permitted Lien definition and Section 7.2(f);
(o)the second proviso of Section 7.3(a), and Section 7.3(b)(viii)
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(p)the conditions set forth in Section 7.4(d) and the restrictions on Investments to Subsidiaries that are not Loan Parties pursuant to each of Section 7.4(e), Section 7.4(f) and the last sentence of Section 7.4;
(q)the last sentence of Section 7.5, the proviso under each of Section 7.5(a), Section 7.5(b) and Section 7.5(g) and Section 7.5(b)(ii);
(r)(i) the prohibition of sale of all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole) in reliance of Section 7.6(h) and Section 7.6(i), and (ii) the last sentence of Section 7.6;
(s)permitting to exist or designate any Subsidiary (as defined in this Agreement as of the Closing Date) as an “unrestricted subsidiary” or changes to the definition of “Subsidiary” to permit the existence of a Subsidiary (as defined in this Agreement as of the Closing Date) of the Borrower that is not subject to covenants of this Agreement;
(t)any waterfall or remedial provisions in any Security Document that adversely and disproportionately affects the rights, remedies and/or pro rata treatment of the Initial Revolving Credit Lenders; and
(u)any baskets related to and refinancings of, Qualified Securitization Financings and Receivables Facilities, including, without limitation, Section 7.1(p).
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Qualified Equity Interests” of any Person means Equity Interests of such Person other than Disqualified Equity Interests. Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of the Borrower.
“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 Subsidiaries, (ii) all sales of the Securitization Assets and related assets by the Borrower or any 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; it being understood and agreed that the A/R Securitization Facility constitutes a Qualified Securitization Financing. The grant of a security interest in any Securitization Assets of the Borrower or any of its 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.
“Real Estate” shall mean a parcel (or group of related parcels) of real property owned by the Borrower or any Subsidiary of the Borrower.
“Recipient” shall mean, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank.
“Receivables Assets” shall mean (a) any accounts receivable generated in the ordinary course of business owed to the Borrower or a Subsidiary 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.
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“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.
“Refinancing Notes” shall mean any secured or unsecured notes or loans issued by the Borrower or any Subsidiary Loan Party (whether under an indenture, a credit agreement or otherwise) and the Indebtedness represented thereby; provided, that (a) 100% of the Net Cash Proceeds of such Refinancing Notes are used to permanently reduce Loans and/or replace Commitments substantially simultaneously with the issuance thereof; (b) the principal amount (or accreted value, if applicable) of such Refinancing Notes does not exceed the principal amount (or accreted value, if applicable) of the aggregate portion of the Loans so reduced and/or Commitments so replaced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses); (c) the final maturity date of such Refinancing Notes is on or after the Term Loan Maturity Date or the Initial Revolving Commitment Termination Date, as applicable, of the Term Loans so reduced or the Revolving Commitments so replaced; (d) the Weighted Average Life to Maturity of such Refinancing Notes is greater than or equal to the remaining Weighted Average Life to Maturity of the Term Loans so reduced or the Revolving Commitments so replaced, as applicable; (e) in the case of Refinancing Notes in the form of notes issued under an indenture, the terms thereof do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Term Loan Maturity Date of the Term Loans so reduced or the Initial Revolving Commitment Termination Date of the Revolving Commitments so replaced, as applicable (other than customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default); (f) the other terms of such Refinancing Notes (other than interest rates, fees, floors, funding discounts and redemption or prepayment premiums and other pricing terms), taken as a whole, are substantially similar to, or not materially less favorable to the Borrowers and its Subsidiaries than the terms, taken as a whole, applicable to the Tranche B-2 Term Loans or the Tranche B-3 Term Loans (except for covenants or other provisions applicable only to periods after the applicable Term Loan Maturity Date in effect at the time such Refinancing Notes are issued or those that are otherwise reasonably acceptable to the Administrative Agent), as determined by the Borrower in good faith (or, if more restrictive, the Loan Documents are amended to contain such more restrictive terms to the extent required to satisfy the foregoing standard); (g) there shall be no obligor in respect of such Refinancing Notes that is not a Loan Party; (h)(x) Refinancing Notes that are secured by Liens on Collateral that rank pari passu in right of security with the Liens securing the Secured Obligations shall be subject to the First Lien Intercreditor Agreement and (y) Refinancing Notes that are secured by Liens on Collateral that rank junior in right of security to the Liens securing the Secured Obligations shall be subject to a Junior Lien Intercreditor Agreement, (i) if such Refinancing Notes are secured, such Refinancing Notes shall not be secured by any assets of the Borrower or its Subsidiaries other than assets constituting Collateral, (j) solely with respect to Refinancing Notes that are secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the MFN Protection shall apply and (k) so long as any Obligations under the Tranche B-2 Term Loans or the Tranche B-3 Term Loans are outstanding, subject to the other provisions of this definition, such Refinancing Notes may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) with the Tranche B-2 Term Loans and the Tranche B-3 Term Loans with respect to any mandatory or voluntary prepayments.
“Refinancing Term Loans” has the meaning assigned to such term in Section 2.24(e).
“Register” shall have the meaning set forth in Section 10.4(c).
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
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“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulatory Authority” shall have the meaning assigned to such term in Section 10.11.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
“Relevant Governmental Body” shall mean the FRB or the NYFRB, or a committee officially endorsed or convened by the FRB or the NYFRB, or any successor thereto.
“Replacement Revolving Facilities” shall have the meaning assigned to such term in Section 2.24(g).
“Replacement Revolving Commitments” shall have the meaning assigned to such term in Section 2.24(g).
“Replacement Revolving Credit Lender” shall mean any Lender with a Replacement Revolving Commitment.
“Replacement Revolving Facility Effective Date” shall have the meaning assigned to such term in Section 2.24(g).
“Replacement Revolving Loans” shall have the meaning assigned to such term in Section 2.24(g).
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the sum of (i) the aggregate outstanding amount of unused Revolving Commitments at such time plus (ii) the aggregate outstanding amount of Initial Revolving Exposure, if any, at such time, plus (iii) the aggregate outstanding amount of Non-Extended Revolving Exposure, if any, at such time plus (iv) the aggregate outstanding principal amount of the Term Loans, if any, at such time. The Commitments, Loans or LC Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Required Percentage” shall mean, (i) 100% of Excess Cash Flow accrued during the life of this Agreement up to $100,000,000, (ii) 65% of Excess Cash Flow accrued during the life of this Agreement in excess of $100,000,000 up to $200,000,000 and (iii) 50% of Excess Cash Flow accrued during the life of this Agreement in excess of $200,000,000.
“Requirement of Law” for any Person shall mean the Organizational Documents of such Person, and any Applicable Law (including the Communications Laws), or determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean any of the president, the chief executive officer, the chief operating officer, the chief financial officer, the treasurer or a vice president of a Person or such other representative of a Person as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the Financial Covenants and Compliance Certificate, Responsible Officer shall mean only the chief financial officer or the treasurer of the Borrower or such other officer of the Borrower as may be agreed to in writing by the Administrative Agent.
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“Restricted Cash Deposit Account” shall mean that certain segregated restricted cash deposit held by the Borrower’s insurance carrier so long as maintenance of such account is necessary to provide financial assurance to such insurance carrier of the Borrower’s ability to fulfill certain obligations with respect to cash requirements associated with workers compensation self-insurance.
“Restricted Payment” shall have the meaning set forth in Section 7.5.
“Retained Declined Proceeds” shall have the meaning set forth in Section 2.12(f).
“Retained Percentage” shall mean, with respect to any Excess Cash Flow Period, (a) 35% of Excess Cash Flow accrued during the life of this Agreement in excess of $100,000,000 up to $200,000,000 and (b) 50% of Excess Cash Flow accrued during the life of this Agreement in excess of $200,000,000.
“Revolving Commitment” shall mean (a) an Initial Revolving Commitment, (b) a Non-Extended Revolving Commitment, (c) any New Revolving Commitment of a New Revolving Credit Lender to make New Revolving Loans to the Borrower and to acquire participations in Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding such New Revolving Credit Lender’s New Revolving Commitment, (d) any Extended Revolving Commitment of an Extending Revolving Credit Lender to make Extended Revolving Loans to the Borrower and to acquire participations in Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding such Extending Revolving Credit Lender’s Extended Revolving Commitment, as the context may require, in each case, as such commitment may be subsequently increased or decreased pursuant to terms hereof or (e) any Replacement Revolving Commitment of a Replacement Revolving Credit Lender to make Replacement Revolving Loans to the Borrower and to acquire participations in Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding such Replacement Revolving Credit Lender’s Replacement Revolving Commitment.
“Revolving Commitment Letter” shall mean that certain Commitment Letter, dated as of March 10, 2025, by and among certain Initial Revolving Credit Lenders and the Borrower, as amended, restated, amended and restated or otherwise modified from time to time.
“Revolving Commitment Termination Date” shall mean, as the context requires, the Initial Revolving Commitment Termination Date or the Non-Extended Revolving Termination Date.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the Initial Revolving Credit Exposure plus the Non-Extended Revolving Credit Exposure of such Lender.
“Revolving Credit Lender” shall mean each Initial Revolving Credit Lender and Non-Extended Revolving Lender.
“Revolving Credit Note” shall mean a promissory note of the Borrower payable to the order of a requesting Lender in the principal amount of such Lender’s Revolving Commitment, in substantially the form of Exhibit A.
“Revolving Facility” shall mean the Initial Revolving Facility and/or the Non-Extended Revolving Facility.
“Revolving Facility Purchase Option” shall have the meaning set forth in Section 10.4(l).
“Revolving LC Participation Fee” shall have the meaning set forth in Section 2.14(c).
“Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender) to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a Term SOFR Loan.
“S&P” shall mean S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, and any successor thereto.
“Sale/Leaseback Transaction” shall have the meaning set forth in Section 7.9.
“Sanctioned Country” shall mean, at any time, a country or territory that is the subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s
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Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, the non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea, and Syria).
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state or His Majesty’s Treasury of the United Kingdom; (b) any Person located, organized or resident in a Sanctioned Country; or (c) any Person otherwise the subject or target of any Sanctions.
“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom.
“Secured Cash Management Agreement” shall mean any Cash Management Agreement between or among any Loan Party and any Cash Management Bank.
“Secured Hedge Agreement” shall mean any Hedge Agreement between or among any Loan Party and any Hedge Bank.
“Secured Obligations” shall mean, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by any Loan Party under (i) any Secured Hedge Agreement (other than an Excluded Swap Obligation) and (ii) any Secured Cash Management Agreement.
“Secured Parties” shall mean, collectively, the Administrative Agent, the Lenders (including the Swingline Lender and each New Lender), the Issuing Banks, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.5, any other holder from time to time of any of any Secured Obligations and, in each case, their respective successors and permitted assigns.
“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 in accordance with the terms of this Agreement, pursuant to which the Borrower or any of its Subsidiaries sells its Securitization Assets to either (a) a person that is not a 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 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 Fees” means distributions or payments made directly or by means of discounts with respect to any Securitization Assets or participation interest therein issued or sold in connection with, and other fees paid in connection with, any Qualified Securitization Financing.
“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.
“Security Agreement” shall mean the Pledge and Security Agreement dated as of the Closing Date among the Loan Parties and the Administrative Agent, as amended, restated, amended and restated or otherwise modified from time to time.
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“Security Documents” shall mean, collectively, the Security Agreement and all UCC-1 financing statements, all intellectual property security agreements, all Control Agreements and any other document, instrument or agreement granting or purporting to grant a Lien on the Collateral as security for the Secured Obligations and, in each case, entered into pursuant to the Security Agreement or any other Loan Document.
“Senior Secured Net Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt as of such date that is secured by a Lien on any assets (including Equity Interests) of the Borrower and/or its Subsidiaries to (ii) the quotient of: (x) Consolidated EBITDA for the eight (8) consecutive Fiscal Quarters ending on or immediately prior to such date divided by (y) two (2).
“Senior Secured Notes” shall mean the Borrower’s 3.875% senior secured notes due 2029 issued under the Senior Secured Notes Indenture.
“Senior Secured Notes Collateral Agent” shall mean U.S. Bank National Association, as collateral agent for the noteholders and other secured parties under the Senior Secured Notes Indenture, together with its successors and permitted assigned under the Senior Secured Notes Indenture.
“Senior Secured Notes Indenture” shall mean that certain Indenture, dated as of December 30, 2020, among Scripps Escrow II, Inc. and U.S. Bank National Association.
“Senior Unsecured Notes” shall mean 2027 Unsecured Notes and 2031 Unsecured Notes.
“Senior Unsecured Notes Indentures” shall mean the 2027 Unsecured Notes Indenture and 2031 Unsecured Notes Indenture.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“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.
“Station” shall mean (a) each television or radio station identified as such on Schedule 4.23 and (b) any television or radio station the Licenses of which are owned or held by the Borrower or any of its Subsidiaries on or after the Closing Date.
“Steerco Commitment Premium” shall mean that certain premium payable on the Closing Date pursuant to and in accordance with paragraph 7(b) under the heading “Transactions” of Exhibit A to the Transaction Support Agreement.
“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. 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 either (a) with respect to a Joint
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Venture or (b) for bona fide business purposes and not for the purpose of effectuating any Liability Management Transactions.
“Subsidiary Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated as of the Closing Date, made by the Borrower and each Guarantor listed on the signature pages thereof in favor of the Administrative Agent, as amended, restated, amended and restated or otherwise modified from time to time.
“Subsidiary Guaranty Supplement” shall mean each supplement substantially in the form of Annex I to the Subsidiary Guaranty Agreement executed and delivered by a Subsidiary of the Borrower pursuant to Section 5.12.
“Subsidiary Loan Party” shall mean any Subsidiary that executes or becomes a party to the Subsidiary Guaranty Agreement and “Subsidiary Loan Parties” means each such Subsidiary, collectively.
“Supermajority Required Lenders” shall mean, at any time, Lenders holding more than 66.66% of the sum of (i) the aggregate outstanding amount of unused Revolving Commitments at such time plus (ii) the aggregate outstanding amount of Initial Revolving Exposure, if any, at such time, plus (iii) the aggregate outstanding amount of Non-Extended Revolving Exposure, if any, at such time plus (iv) the aggregate outstanding principal amount of the Term Loans, if any, at such time. The Commitments, Loans or LC Exposure of any Defaulting Lender shall be disregarded in determining Supermajority Required Lenders at any time.
“Swap Obligation” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swingline Borrowing” shall mean a Borrowing of a Swingline Loan.
“Swingline Commitment” shall mean the commitment, if any, of the Swingline Lender to make Swingline Loans. As of the Closing Date, the Swingline Commitment is $10,000,000.
“Swingline Exposure” shall mean, with respect to each Initial Revolving Credit Lender, the principal amount of the Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to purchase a participation in accordance with Section 2.5, which shall equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.
“Swingline Lender” shall mean JPMorgan Chase Bank, N.A., together with its permitted successors and assigns, in such capacity.
“Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under the Swingline Commitment.
“Swingline Note” shall mean the promissory note of the Borrower payable to the order of the applicable Swingline Lender in the principal amount of its Swingline Commitment, substantially the form of Exhibit B.
“Swingline Rate” shall mean, for any Interest Period, the Base Rate in effect from time to time plus the Applicable Margin with respect to Base Rate Initial Revolving Loans.
“Synthetic Lease” shall mean a lease transaction under which the parties intend that (i) the lease will be treated as an “operating lease” by the lessee pursuant to FASB ASC 840 and (ii) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.
“Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i) all remaining rental obligations of such Person as lessee under Synthetic Leases which are attributable to principal and, without duplication, (ii) all rental and purchase price payment obligations of such Person under such Synthetic Leases assuming such Person exercises the option to purchase the lease property at the end of the lease term.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees, or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
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“Term Loan” shall mean, as the context may require, (a) the Tranche B-2 Term Loans, (b) The Tranche B-3 Term Loans, (c) any New Term Loans, (d) any Extended Term Loans and/or (e) any Refinancing Term Loans.
“Term Loan Commitment” shall mean (a) the Tranche B-2 Term Loan Commitments, (b) the Tranche B-3 Term Loan Commitments or (c) any New Term Loan Commitment provided for pursuant to Section 2.24, in each case, as the context may require. Upon the effectiveness of this Agreement and immediately after giving effect to funding thereof, the Tranche B-2 Term Loan Commitments and the Tranche B-3 Term Loan Commitments shall be deemed terminated in full.
“Term Loan Commitment Premium” shall have the meaning set forth in Section 2.14(d).
“Term Loan Facility” shall mean the extensions of credit hereunder, if any, from time to time in the form a Term Loan made by the Term Loan Lenders.
“Term Loan Lender” shall mean, (i) each Tranche B-2 Term Lender, (ii) each Tranche B-3 Term Lender and (iii) each Lender holding an outstanding Tranche B-2 Term Loan, Tranche B-3 Term Loan, New Term Loan and/or Refinancing Term Loan.
“Term Loan Maturity Date” shall mean (a) in the case of the Tranche B-2 Term Loans, the Tranche B-2 Term Loan Maturity Date, (b) in the case of the Tranche B-3 Term Loans, the Tranche B-3 Term Loan Maturity Date and (c) with respect to any New Term Loans, Extended Term Loans and/or Refinancing Term Loans, the earlier of (i) the maturity date specified in the Incremental Amendment applicable to such New Term Loans, Extended Term Loans and/or Refinancing Term Loans, as applicable, and (ii) the date on which all amounts in respect of such New Term Loans, Extended Term Loans and/or Refinancing Term Loans, as applicable, outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Term Loan Note” shall mean a promissory note of the Borrower payable to the order of a requesting Term Loan Lender in the principal amount of such Term Loan Lender’s Term Loan Commitment, if any, or the aggregate outstanding amount of Term Loans, if any, held by such Term Loan Lender (or both, as the context may require), in substantially the form of Exhibit J.
“Term SOFR” shall mean, for any calculation, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Rate with respect to the Term SOFR Reference Rate has not been implemented pursuant to Section 2.16(b) hereof, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day.
“Term SOFR Adjustment” shall mean, for any calculation with respect to a Base Rate Loan or a Term SOFR Loan, a percentage per annum as set forth below for the applicable Type of such Loan and (if applicable) Interest Period therefor:
Base Rate Loans:

0.11448%

Term SOFR Loans:

Interest Period | Percentage
One month | 0.11448%

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Three months | 0.26161%
Six months | 0.42826%

“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate.”
“Term SOFR Loan” shall mean with respect to any Term SOFR Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” shall mean, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term SOFR Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Test Period” shall mean, at any date of determination, the most recently completed eight (8) consecutive Fiscal Quarters ending on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 5.1(a) or (b).
“Total Net Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt as of such date to (ii) the quotient of: (x) Consolidated EBITDA for the eight (8) consecutive Fiscal Quarters ending on or immediately prior to such date divided by (y) two (2).
“Trade Date” shall have the meaning set forth in Section 10.4(h).
“Tranche B-2 Prepayment Premium” shall have the meaning set forth in Section 2.11(b).
“Tranche B-2 Term Loan Commitment” shall mean, with respect to each Lender, (i) the amount, if any, set forth opposite such Lender’s name in Schedule I hereto as its “Tranche B-2 Term Loan Commitment” or in the case of any Lender that becomes a party hereto pursuant to an Assignment and Acceptance, in each case relating to such “Tranche B-2 Term Loan Commitment”, the amount set forth in such Assignment and Acceptance. As of the Closing Date, the aggregate amount of the Tranche B-2 Term Loan Commitments together with the Term Loan Commitment Premium is $545,214,668.37.
“Tranche B-2 Term Lender” shall mean each Lender with a Tranche B-2 Term Loan Commitment or, to the extent the Tranche B-2 Term Loan Commitment have been terminated, a Tranche B-2 Term Loan.
“Tranche B-2 Term Loan” shall mean, with respect to each Lender that has a Tranche B-2 Term Loan Commitment, any loan made by such Lender pursuant to Section 2.2.
“Tranche B-2 Term Loan Maturity Date” shall mean the earlier of (i) June 30, 2028, (ii) the date on which Tranche B-2 Term Loan Springing Maturity Date occurs and (iii) the date on which all Tranche B-2 Term Loans
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outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Tranche B-2 Term Loan Springing Maturity Date” shall mean the date 91 days earlier than the stated final maturity with respect to the Borrower’s 2027 Unsecured Notes, but only to the extent that more than $50,000,000 in aggregate principal amount thereof (including any refinancing or successive refinancing that matures less than 91 days after the then latest maturity date of the Tranche B-2 Term Loans) remains outstanding on the applicable reference date.
“Tranche B-3 Prepayment Premium” shall have the meaning set forth in Section 2.11(b).
“Tranche B-3 Term Loan Commitment” shall mean, with respect to each Lender, (i) the amount, if any, set forth opposite such Lender’s name in Schedule I hereto as its “Tranche B-3 Term Loan Commitment” or in the case of any Lender that becomes a party hereto pursuant to an Assignment and Acceptance, in each case relating to such “Tranche B-3 Term Loan Commitment”, the amount set forth in such Assignment and Acceptance. As of the Closing Date, the aggregate amount of the Tranche B-3 Term Loan Commitments is $340,154,065.81.
“Tranche B-3 Term Lender” shall mean each Lender with a Tranche B-3 Term Loan Commitment or, to the extent the Tranche B-3 Term Loan Commitment have been terminated, a Tranche B-3 Term Loan.
“Tranche B-3 Term Loan” shall mean, with respect to each Lender that has a Tranche B-3 Term Loan Commitment, any loan made by such Lender pursuant to Section 2.2.
“Tranche B-3 Term Loan Maturity Date” shall mean the earlier of (i) November 30, 2029, (ii) the date on which Tranche B-3 Term Loan Springing Maturity Date occurs and (iii) the date on which all Tranche B-3 Term Loans outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Tranche B-3 Term Loan Springing Maturity Date” shall mean the date 91 days earlier than the stated final maturity with respect to the Borrower’s (i) 2027 Unsecured Notes and (ii) the Senior Secured Notes, but only to the extent that, in either case, more than $50,000,000 in aggregate principal amount thereof (including any refinancing or successive refinancing that matures less than 91 days after the then latest maturity date of the Tranche B-3 Term Loans) remains outstanding on the applicable reference date.
“Transaction Documents” shall mean, individually and collectively, the Loan Documents and all other agreements, documents or instruments executed in connection with the Transactions.
“Transaction Support Agreement” shall have the meaning set forth in the recitals of this Agreement.
“Transaction Expenses” shall mean any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.
“Transactions” shall mean the Transactions (as defined in the Transaction Support Agreement) to be entered into on the Closing Date.
“Type” when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Term SOFR or the Base Rate.
“UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided, that to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, the Administrative Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in
45

such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unrestricted Cash and Cash Equivalents” shall mean, on any date of determination, all Cash (excluding, for purposes of clarity, any amounts available to be drawn or funded under lines of credit or other debt facilities, including, without, limitation, revolving loans) and all cash equivalents owned by the Loan Parties, in each case, on the date of determination; provided, however, that amounts calculated under this definition shall exclude any amounts that would not be considered “cash” or “cash equivalents” under GAAP or “cash” or “cash equivalents” as recorded on the books of the Loan Parties; provided, further, that amounts and cash equivalents included under this definition shall (i) be included only to the extent such amounts or cash equivalents are (A) not subject to any Lien or other restriction or encumbrance of any kind (other than Liens (x) arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights so long as such liens and rights are not being enforced or otherwise exercised and (y) in favor of Administrative Agent) and (B) subject to a perfected Lien in favor of the Administrative Agent and (ii) exclude any amounts held by the Loan Parties in escrow, trust or other fiduciary capacity for or on behalf of a client of the Borrower, any Subsidiary or any of their respective Affiliates.
“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.20(g)(B)(iii).
“Websites” shall mean, as to any Person, any and all Internet websites operated by or for the benefit of such Person, at domain names owned or licensed by such Person, including any content contained thereon (but excluding any content that is not produced by or on behalf of such Person).
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Working Capital” shall mean, at any time of determination, (a) the consolidated current assets (other than cash and Permitted Investments) of the Borrower and its Subsidiaries at such time minus (b) the consolidated current liabilities of the Borrower and its Subsidiaries at such time, but excluding any current portion of long term debt; provided that increases or decreases in Working Capital shall be calculated without regard to any changes in current
46

assets or current liabilities as a result of any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent.
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g. a “Revolving Loan”, a “Term Loan” or a “Swingline Loan”) or by Type (e.g. a “Term SOFR Loan” or a “Base Rate Loan”) or by Class and Type (e.g. “Revolving Term SOFR Loan”). Borrowings also may be classified and referred to by Class (e.g. “Revolving Borrowing” or a “Term Loan Borrowing”) or by Type (e.g. “Term SOFR Borrowing”) or by Class and Type (e.g. “Revolving Term SOFR Borrowing”).
Section 1.3. Accounting Terms and Determination. Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a basis consistent with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a); provided, that (a) obligations relating to a lease that were (or would be) classified and accounted for by Borrower and its Subsidiaries as an operating lease under GAAP as in effect on the Closing Date shall continue to be classified and accounted for as obligations relating to an operating lease and not as a capitalized lease notwithstanding Accounting Standards Codification 840 or Accounting Standards Codification 842 or any implementation thereof, and (b) if the Borrower notifies the Administrative Agent that the Borrower wishes to amend the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Existing First Lien Net Leverage Ratio or the First Lien Gross Leverage Ratio to eliminate the effect of any change in GAAP occurring after the Closing Date on the operation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Existing First Lien Net Leverage Ratio or the First Lien Gross Leverage Ratio, as applicable (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Existing First Lien Net Leverage Ratio or the First Lien Gross Leverage Ratio for such purpose), then the Borrower’s calculation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Existing First Lien Net Leverage Ratio, the First Lien Gross Leverage Ratio and/or compliance with the Financial Covenants, as applicable, shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Existing First Lien Net Leverage Ratio, the First Lien Gross Leverage Ratio and/or the Financial Covenants, as applicable, is amended in a manner satisfactory to (i) solely with respect to the Existing First Lien Net Leverage Ratio, the Borrower and the Majority Non-Extended Revolving Credit Lenders, (ii) solely with respect to the usage of First Lien Net Leverage Ratio pursuant to Section 6.1,the Borrower and the Majority Initial Revolving Credit Lenders and (iii) otherwise, the Borrower and the Required Lenders. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein.
Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the word “to” means “to but excluding.” Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed
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as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof,” “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement, (v) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. To the extent that any of the representations and warranties contained in Article IV under this Agreement is qualified by “Material Adverse Effect,” then the qualifier “in all material respects” contained in Section 3.2 and the qualifier “in any material respect” contained in Section 8.1(c) shall not apply. Unless otherwise indicated, all references to time are references to Eastern Standard Time or Eastern Daylight Savings Time, as the case may be. Unless otherwise expressly provided herein, all references to dollar amounts shall mean Dollars. In determining whether any individual event, act, condition or occurrence of the foregoing types could reasonably be expected to result in a Material Adverse Effect, notwithstanding that a particular event, act, condition or occurrence does not itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event, act, condition or occurrence and all other such events, acts, conditions or occurrences of the foregoing types which have occurred could reasonably be expected to result in a Material Adverse Effect.
Section 1.5.[Reserved].
Section 1.6. Delaware LLC Divisions. For purposes of this Agreement and the other Loan Documents:
(a)in connection with any “Division” (as defined in Section 18-217 of the Delaware Limited Liability Company Act (“DE LLCA”)) or plan of division under Delaware the DE LLCA (or any comparable event under a different jurisdiction’s laws): (i) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; (ii) if any new Person comes into existence, such new Person shall be deemed to have been formed or organized on the first date of its existence by the holders of its Equity Interests at such time; (iii) any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or any similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person; (iv) any “Division” of a limited liability company shall constitute a separate Person hereunder (and each “Division” of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person); and (v) for the avoidance of doubt, any reference to “Pro Forma Basis” herein which includes a transaction described in clause (z) of such definition shall be deemed to include any “Division” and the rules of this Section 1.6;
(b)without limiting any of the other covenants or requirements herein, the Borrower agrees that it will not permit any Loan Party or Subsidiary that is a limited liability company to divide itself into two or more limited liability companies (pursuant to a “Division” or “plan of division” as contemplated under the DE LLCA or otherwise) unless, in the event that any Loan Party or Subsidiary that is a limited liability company divides itself into two or more limited liability companies, such limited liability companies formed as a result of such division shall comply with the applicable obligations set forth in Section 5.12 and the other further assurances obligations set forth in the Loan Documents and become a Loan Party to the extent otherwise required under Section 5.12; and
(c)the Borrower agrees that it will not permit any Loan Party or Subsidiary that is a limited liability company to divide itself into two or more limited liability companies (pursuant to a “Division” or “plan of division” as contemplated under the DE LLCA or otherwise) unless the Borrower has given the Administrative Agent at least 5 Business Days prior written notice of the consummation of such “Division” (which notice provides reasonable details thereof).
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities.
(a)Subject to and upon the terms and conditions herein set forth, (i) the Initial Revolving Credit Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which each Initial Revolving Credit Lender severally agrees (to the extent of such Lender’s Initial Revolving Commitment) to make Initial Revolving Loans to the Borrower during the Initial Revolving Facility Availability Period in accordance with Section 2.3, (ii) the Non-Extended Revolving Credit Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which each Non-Extended Lender severally agrees (to the extent of such Lender’s Non-Extended Revolving Commitment) to make Non-Extended Revolving Loans to the Borrower during the Non-Extended Revolving Facility Availability Period in accordance with Section 2.3, (iii) each Issuing Bank agrees to issue Letters of Credit during the Initial Revolving Facility Availability Period in accordance with Section 2.22, (iv) each Swingline Lender agrees to make Swingline Loans during the Initial Revolving Facility Availability Period in accordance with Section 2.5 and (v) each Initial Revolving Credit Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans pursuant to the terms and conditions hereof; provided, that in no event shall the aggregate principal amount of all outstanding Initial Revolving Loans, Swingline Loans and outstanding LC Exposure exceed at any time the Aggregate Initial Revolving Commitment Amount from time to time in effect.
Section 2.2. Term Loans.
(a)Subject to the terms and conditions set forth herein, on the Closing Date, the Tranche B-2 Term Loans shall be (i) made by the Fronting Lender pursuant to the Fronting Arrangement or (ii) deemed to have been made, through exchange via cashless roll by each Tranche B-2 Term Lender, as the case may be, to the Borrower denominated in Dollars in the amount of such Tranche B-2 Term Lender’s Tranche B-2 Term Loan Commitment.
(b)Subject to the terms and conditions set forth herein, on the Closing Date, the Tranche B-3 Term Loans shall be (i) made by the Fronting Lender pursuant to the Fronting Arrangement or (ii) deemed to have been made, through exchange via cashless roll by each Tranche B-3 Term Lender, as the case may be, to the Borrower denominated in Dollars in the amount of such Tranche B-3 Term Lender’s Tranche B-3 Term Loan Commitment.
(c)With respect to all Term Loans, (i) once prepaid or repaid, may not be reborrowed, (ii) such Term Loans may be, from time to time at the option of the Borrower, Base Rate Loans or Term SOFR Loans or a combination thereof in accordance with the terms and conditions hereof, in each case denominated in Dollars; provided that such Term Loans made as part of the same Term Borrowing shall consist of Term Loans of the same Type and (iii) such Term Loans shall be repaid in accordance with Section 2.9(c).
Section 2.3. Revolving Loans.
(a)Subject to the terms and conditions set forth herein, (i) each Initial Revolving Credit Lender severally agrees to make Initial Revolving Loans, ratably in proportion to its Pro Rata Share, to the Borrower, from time to time during the Initial Revolving Facility Availability Period, in an aggregate principal amount outstanding at any time that will not result in (a) such Lender’s Initial Revolving Credit Exposure exceeding such Lender’s Initial Revolving Commitment or (b) the Aggregate Initial Revolving Credit Exposure exceeding the Aggregate Initial Revolving Commitment Amount. During the Initial Revolving Facility Availability Period, subject to satisfaction of the conditions precedent set forth herein, the Borrower shall be entitled to borrow, prepay and reborrow Initial Revolving Loans in accordance with the terms and conditions of this Agreement; provided that the Borrower may not borrow or reborrow should there exist a Default or Event of Default at the time of the proposed Borrowing.
(b)Subject to the terms and conditions set forth herein, (i) each Non-Extended Revolving Credit Lender severally agrees to make Non-Extended Revolving Loans, ratably in proportion to its Pro Rata Share, to the Borrower, from time to time during the Non-Extended Revolving Facility Availability Period, in an aggregate principal amount outstanding at any time that will not result in (a) such Lender’s Non-Extended Revolving Credit Exposure exceeding such Lender’s Non-Extended Revolving Commitment or (b) the Aggregate Non-Extended
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Revolving Credit Exposure exceeding the Aggregate Non-Extended Revolving Commitment Amount. During the Non-Extended Revolving Facility Availability Period, subject to satisfaction of the conditions precedent set forth herein, the Borrower shall be entitled to borrow, prepay and reborrow Non-Extended Revolving Loans in accordance with the terms and conditions of this Agreement; provided that the Borrower may not borrow or reborrow should there exist a Default or Event of Default at the time of the proposed Borrowing.
(c)No Initial Revolving Loans shall be made until the utilization in full or termination of all remaining Non-Extended Revolving Commitments; provided that, (i) if the principal amount of any Notice of Borrowing exceeds the availability under the then existing Non-Extended Revolving Commitments, the Borrower may simultaneously utilize the Initial Revolving Facility for any such excess amount and (ii) notwithstanding the foregoing, the Borrower may request Letters of Credit and/or Swingline Loans under the Initial Revolving Facility without full utilization or termination of all remaining Non-Extended Revolving Commitments.
Section 2.4. Procedure for Borrowings.
(a)The Borrower shall give the Administrative Agent written notice of each Borrowing a Notice of Borrowing (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing, (y) prior to 11:00 a.m. three (3) U.S. Government Securities Business Days prior to the requested date of each Term SOFR Borrowing and (z) prior to 1:00 p.m. one (1) U.S. Government Securities Business Day prior to the requested date of any Borrowing to be made on the Closing Date. Each Notice of Borrowing shall be irrevocable and shall specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) the Class and Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Term SOFR Borrowing, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period). Promptly following the receipt of a Notice of Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and the amount of such Lender’s Loan to be made as part of the requested Borrowing.
(b)Each Borrowing shall consist entirely of Base Rate Loans or Term SOFR Loans, as the Borrower may request; provided that the Borrower may elect different options with respect to different portions of the affected Borrowing in accordance with Section 2.7(a) below. The aggregate principal amount of each Term SOFR Borrowing shall be not less than $1,000,000 or a larger multiple of $500,000, and there shall be no minimum aggregate principal amount or minimum increment for Base Rate Borrowings. At no time shall the total number of Term SOFR Borrowings outstanding at any time exceed six (6).
Section 2.5. Swingline Commitment.
(a)Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time not to exceed the lesser of (i) the Swingline Commitment then in effect and (ii) the difference between the Aggregate Initial Revolving Commitment Amount and the aggregate Initial Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.
(b)The Borrower shall give the Administrative Agent written notice of each Swingline Borrowing a Notice of Swingline Borrowing prior to 10:00 a.m. on the requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of such Swingline Loan (which shall be a Business Day) and (iii) the account of the Borrower to which the proceeds of such Swingline Loan should be credited. The Administrative Agent will promptly advise the Swingline Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest at the Swingline Rate and shall have an Interest Period (subject to the definition thereof) as agreed between the Borrower and the Swingline Lender. The aggregate principal amount of each Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such other minimum amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender will make the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately available funds at the account specified by the Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the requested date of such Swingline Loan.
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(c)The Swingline Lender at any time and from time to time in its sole discretion, may, on behalf of the Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice of Borrowing to the Administrative Agent requesting the Initial Revolving Credit Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan. Each Initial Revolving Credit Lender will make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the applicable Swingline Lender in accordance with Section 2.6, which will be used solely for the repayment of such Swingline Loan.
(d)If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Initial Revolving Credit Lender (other than the Swingline Lender) shall purchase an undivided participating interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base Rate Borrowing should have occurred. On the date of such required purchase, each Initial Revolving Credit Lender shall promptly transfer, in immediately available funds, the amount of its participating interest to the Administrative Agent for the account of the applicable Swingline Lender. If such Swingline Loan bears interest at a rate other than the Base Rate, such Swingline Loan shall automatically become a Base Rate Loan on the effective date of any such participation and interest shall become payable on demand.
(e)Each Initial Revolving Credit Lender’s obligation to make a Base Rate Loan pursuant to Section 2.5(c) or to purchase the participating interests pursuant to Section 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may have or claim against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default, the failure of the Borrower to satisfy any other condition set forth in Section 3.2 hereof or the termination of any Lender’s Initial Revolving Commitment, (iii) the existence (or alleged existence) of any event or condition which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by the Borrower, the Administrative Agent or any Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made available to the Swingline Lender by any Initial Revolving Credit Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued interest thereon for each day from the date of demand thereof (i) at the Federal Funds Rate until the second Business Day after such demand and (ii) at the Base Rate at all times thereafter. Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of the unpaid participation for all purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans and any other amounts due to it hereunder, to the Swingline Lender to fund the amount of such Lender’s participation interest in such Swingline Loans that such Lender failed to fund pursuant to this Section 2.5, until such amount has been purchased in full.
(f)If the Initial Revolving Commitment Termination Date shall have occurred in respect of any tranche of Initial Revolving Commitments at a time when another tranche or tranches of Initial Revolving Commitments is or are in effect with a later Initial Revolving Commitment Termination Date, then on the earliest occurring Initial Revolving Commitment Termination Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Initial Revolving Commitment Termination Date); provided, however, that if on the occurrence of such earliest Initial Revolving Commitment Termination Date (after giving effect to any repayments of Initial Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.22(j)), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in effect after the occurrence of such Initial Revolving Commitment Termination Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Commitments, and such Swingline Loans shall not be so required to be repaid in full on such earliest Initial Revolving Commitment Termination Date. Commencing with the Initial Revolving Commitment Termination Date of any tranche of Initial Revolving Commitments, the Swingline Commitment shall be agreed with the Initial Revolving Credit Lenders under the extended tranches.
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Section 2.6. Funding of Borrowings.
(a)Each Lender will make available (i) each Term SOFR Loan to be made by it hereunder on the proposed date thereof by wire transfer in immediately available funds by 11:00 a.m. to the Administrative Agent at the Payment Office and (ii) each Base Rate Loan to be made by it hereunder on the proposed date thereof by wire transfer in immediately available funds by 3:00 p.m. to the Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made as set forth in Section 2.5. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of business on such proposed date, to an account maintained by the Borrower with the Administrative Agent or at the Borrower’s option, by effecting a wire transfer of such amounts to an account designated by the Borrower to the Administrative Agent.
(b)[reserved].
(c)Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing (or, in the case of Base Rate Loans, prior to 3:00 p.m. on the date of such Borrowing) in which such Lender is to participate that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption, may make available to the Borrower (but shall have no obligations to make available to the Borrower) on such date a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest at the Federal Funds Rate until the second Business Day after such demand and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(d)All Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a)Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing, and in the case of a Term SOFR Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a different Type or to continue such Borrowing, and in the case of a Term SOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.7. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall NOT apply to Swingline Borrowings, which may not be converted or continued.
(b)To make an election pursuant to this Section 2.7, the Borrower shall give the Administrative Agent prior written notice of each Borrowing that is to be converted or continued, as the case may be, (x) prior to 10:00 a.m. on the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) U.S. Government Securities Business Days prior to a continuation of or conversion into a Term SOFR Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such Notice of Conversion/Continuation applies and if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Term SOFR Borrowing; and (iv) if the resulting Borrowing is to be a Term SOFR Borrowing, the Interest Period applicable thereto after giving effect to
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such election, which shall be a period contemplated by the definition of “Interest Period.” If any such Notice of Conversion/Continuation requests a Term SOFR Borrowing but does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month. The principal amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Term SOFR Borrowings and Base Rate Borrowings set forth in Section 2.4(b).
(c)If, on the expiration of any Interest Period in respect of any Term SOFR Borrowing, the Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a Term SOFR Borrowing if a Default or an Event of Default exists, unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Term SOFR Loans shall be permitted except on the last day of the Interest Period in respect thereof.
(d)Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
Section 2.8. Optional Reduction and Termination of Commitments.
(a)Unless previously terminated, (i) all Initial Revolving Commitments, Swingline Commitments and LC Commitments shall terminate on the Initial Revolving Commitment Termination Date and (ii) all Non-Extended Revolving Commitments shall terminate on the Non-Extended Revolving Commitment Termination Date.
(b)Upon at least three (3) Business Days’ prior written notice to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate Initial Revolving Commitments in part or terminate the Aggregate Initial Revolving Commitments in whole; provided, that (i) any partial reduction shall apply to reduce proportionately and permanently the Initial Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section 2.8 shall be in an amount of at least $5,000,000 and any larger multiple of $1,000,000, (iii) no such reduction shall be permitted which would reduce the Aggregate Initial Revolving Commitment Amount to an amount less than the outstanding Initial Revolving Credit Exposures of all Lenders. Any such reduction in the Aggregate Initial Revolving Commitment Amount below the sum of the principal amount of the Swingline Commitment and the LC Commitment shall result in a proportionate reduction (rounded to the next lowest integral multiple of $100,000) in the Swingline Commitment and the LC Commitment.
(c)Upon at least three (3) Business Days’ prior written notice to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate Non-Extended Revolving Commitments in part or terminate the Aggregate Non-Extended Revolving Commitments in whole; provided, that (i) any partial reduction shall apply to reduce proportionately and permanently the Non-Extended Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section 2.8 shall be in an amount of at least $5,000,000 and any larger multiple of $1,000,000, (iii) no such reduction shall be permitted which would reduce the Aggregate Non-Extended Revolving Commitment Amount to an amount less than the outstanding Non-Extended Revolving Credit Exposures of all Lenders.
Section 2.9. Repayment of Loans.
(a)The outstanding principal amount of all Initial Revolving Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Initial Revolving Commitment Termination Date and the outstanding principal amount of all Non-Extended Revolving Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Non-Extended Revolving Commitment Termination Date . Any payments (including any prepayments pursuant to Section 2.11 or Section 2.12) of Revolving Loans shall first apply towards the Initial Revolving Loans until such Loans are paid in full and any excess payments thereof shall apply towards the Non-Extended Revolving Loans.
(b)The principal amount of each Swingline Borrowing shall be due and payable (together with accrued and unpaid interest thereon) on the earlier of (i) the last day of the Interest Period applicable to such Borrowing and (ii) the Initial Revolving Commitment Termination Date.
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(c)The Borrower unconditionally agrees to pay to the Administrative Agent for the ratable account of (i) the Tranche B-2 Term Lenders, (x) on each March 31, June 30, September 30 and December 31, commencing on June 30, 2025, an amount equal to 0.25% of the aggregate principal amount of Tranche B-2 Term Loans outstanding on the Closing Date and (y) on the Tranche B-2 Term Loan Maturity Date, the aggregate principal amount of the Tranche B-2 Term Loans outstanding on such date and (ii) the Tranche B-3 Term Lenders, (x) on each March 31, June 30, September 30 and December 31, commencing on June 30, 2025, an amount equal to 0.25% of the aggregate principal amount of Tranche B-3 Term Loans outstanding on the Closing Date and (y) on the Tranche B-3 Term Loan Maturity Date, the aggregate principal amount of the Tranche B-3 Term Loans outstanding on such date.
Section 2.10. Evidence of Indebtedness.
(a)Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and Type thereof and the Interest Period applicable thereto, (iii) the date of each continuation thereof pursuant to Section 2.7, (iv) the date of each conversion of all or a portion thereof to another Type pursuant to Section 2.7, (v) the date and amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided that the failure or delay of any Lender or the Administrative Agent in maintaining or making entries into any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the terms of this Agreement.
(b)At the request of any Lender (including the Swingline Lender) at any time, the Borrower agrees that it will execute and deliver to such Lender a Revolving Credit Note and/or a Term Loan Note, as the case may be, and, in the case of the Swingline Lender only, a Swingline Note, payable to the order of such Lender.
Section 2.11. Optional Prepayments. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty (other than as set forth in clause (b) below), by giving irrevocable written notice to the Administrative Agent no later than (i) in the case of prepayment of any Term SOFR Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any such prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, 11:00 a.m. on the date of such prepayment, and (iii) in the case of Swingline Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Prepayments of Base Rate Borrowings or Term SOFR Borrowings shall be in minimum amounts of $1,000,000 and in integral multiples of $500,000. Upon receipt of any such notice, the Administrative Agent shall promptly notify each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such notice is given, the aggregate amount specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so prepaid in accordance with Section 2.13(d); provided, that if a Term SOFR Borrowing is prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2.19. Each partial prepayment of any Term SOFR Loan shall be made in an amount not less than $1,000,000 or a larger multiple of $500,000. Each prepayment of a Borrowing shall be applied ratably to the Loans comprising such Borrowing. Notwithstanding the foregoing, optional prepayments of any Class of Term Loans shall be applied to the remaining scheduled installments of principal thereof pursuant to Section 2.9(c) in a manner directed by the Borrower (or, if no such direction is provided at the time of prepayment, to the remaining principal installments owing under Section 2.9(c) on a pro rata basis against all such scheduled installments (including the final installment due and payable on the Term Loan Maturity Date of the applicable Class of Term Loans)).
(b)In the event that (x) the Borrower makes any voluntary prepayment of the Tranche B-2 Term Loans or Tranche B-3 Term Loans pursuant to Section 2.11(a) or any refinancing, exchange, redemption, repayment or discharge of the Tranche B-2 Term Loans or the Tranche B-3 Term Loans or any prepayment under Section 2.12(b) or (y) all or a portion of the Tranche B-2 Term Loans or Tranche B-3 Term Loans are accelerated (or deemed accelerated) for any reason, including because of the occurrence and continuance of any Event of Default,
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the commencement of any bankruptcy, examinership, reorganization, insolvency or liquidation proceeding or other proceeding pursuant to any applicable Debtor Relief Laws, sale, disposition, or encumbrance (including by operation of law or otherwise) (each of the foregoing, a “Premium Event”), then, in each case, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Term Loan Lender, a prepayment premium equal to (A) in the case of the Tranche B-2 Term Loans, (I) if such Premium Event occurs from the Closing Date through, but excluding, the twelve (12) month anniversary of the Closing Date, 2.00 % of the aggregate principal amount of the Tranche B-2 Term Loans being repaid, prepaid, required to be prepaid, or accelerated and (II) if such Premium Event occurs on or after the twelve (12) month anniversary of the Closing Date and prior to the twenty-four (24) month anniversary of the Closing Date, 1.00 % of the aggregate principal amount of the Tranche B-2 Term Loans being repaid, prepaid, required to be prepaid, or accelerated (such premium described in this clause (A), the “Tranche B-2 Prepayment Premium”) and (B) in the case of the Tranche B-3 Term Loans, if such Premium Event occurs from the Closing Date through, but excluding, the twelve (12) month anniversary of the Closing Date, 1.00 % of the aggregate principal amount of the Initial Term Loans being repaid, prepaid, required to be prepaid, or accelerated (the “Tranche B-3 Prepayment Premium” and, together with the Tranche B-2 Prepayment Premium, each a “Prepayment Premium” and collectively the “Prepayment Premiums”).
(c)The parties hereto further acknowledge and agree that the Prepayment Premiums shall be presumed to be the liquidated damages sustained by each applicable Term Lender as a result of the early repayment or prepayment of the Tranche B-2 Term Loans or Tranche B-3 Term Loans, as applicable (and not intended to act as a penalty or to punish the Loan Parties for any such repayment or prepayment). Any prepayment or repayment, whether voluntary or involuntary, of the Tranche B-2 Term Loans or Tranche B-3 Term Loans, applicable, upon the occurrence of any Premium Event shall be accompanied by all unpaid accrued interest on the principal amount prepaid or repaid, together with the applicable Prepayment Premium payable at such time, as applicable pursuant to Section 2.11(b). Without limiting the generality of the foregoing in this Section 2.11(c), and notwithstanding anything to the contrary in this Agreement or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default, the commencement of any bankruptcy, examinership, reorganization, insolvency or liquidation proceeding or other proceeding pursuant to any applicable Debtor Relief Laws, sale, disposition, or encumbrance (including that by operation of law or otherwise), the applicable Prepayment Premium, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Initial Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein. The applicable Prepayment Premium shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other similar means). EACH OF THE BORROWER AND THE OTHER LOAN PARTIES EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each of the Borrower and the other Loan Parties expressly agrees that (i) the applicable Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (ii) the applicable Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment or redemption is made, (iii) there has been a course of conduct between the applicable Term Lenders, the Borrower and the other Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium, (iv) to the maximum extent permitted by law, the Borrower and the other Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.11(c), (v) their respective agreement to pay or guarantee the payment of the applicable Prepayment Premium is a material inducement to the applicable Term Lenders to provide the Term Commitments and make the Term Loans hereunder, and (vi) the applicable Prepayment Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the applicable Term Loan Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the applicable Term Loan Lenders or profits lost by the applicable Term Loan Lenders as a result of such applicable Premium Event.
Section 2.12. Mandatory Repayments.
(a)One hundred (100%) of the amount of any prepayment permitted hereunder that is offered to holders of Junior Debt pursuant to Section 7.5(f)(x) and refused by any or all of such holders shall be paid to the Administrative Agent within five (5) Business Days of the notice given to Administrative Agent pursuant to Section 2.12(f), following the receipt by the Borrower or any of its Subsidiaries of such refusal as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans and Tranche B-3 Term Loans on a pro rata basis and otherwise in accordance with the terms of this Agreement and Section 2.12(g).
(b)If the Borrower or any Subsidiary shall incur any Indebtedness after the Closing Date (other than Indebtedness permitted under Section 7.1), one hundred percent (100%) of the Net Cash Proceeds received by the Borrower or such Subsidiary from such incurrence shall be paid to the Administrative Agent on the date of receipt of the proceeds thereof by the Borrower or such Subsidiary as a mandatory payment of the Loans. All such payments shall be applied to the Obligations in the order set forth in Section 2.12(g) below. Nothing in this Section 2.12(b)
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shall authorize the Borrower or any Subsidiary to incur any Indebtedness except to the extent permitted by this Agreement.
(c)Seventy percent (70%) of the Net Cash Proceeds from any Disposition or series of related Dispositions by any of the Borrower or any of its Subsidiaries made after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans on a pro rata basis and thirty percent (30%) of the Net Cash Proceeds from any Disposition or series of related Dispositions by any of the Borrower or any of its Subsidiaries made after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-3 Term Loans on a pro rata basis (it being understood that, subject to the following sentence, not less than 100% of the Net Cash Proceeds from any Disposition or series of related Dispositions in excess of $5,000,000 in the aggregate in any fiscal year shall be subject to the mandatory prepayment set forth in this Section 2.12(c) and applied to the Tranche B-2 Term Loans and the Tranche B-3 Term Loans in accordance with the allocation set forth above). Notwithstanding the foregoing and provided no Default or Event of Default has occurred and is continuing on the date of such Disposition or on the date of, or any date after such Disposition and prior to, any reinvestment permitted pursuant to this clause (c), such Person shall not be required to pay such Net Cash Proceeds to the Administrative Agent for payment of such Obligations to the extent such Person reinvests up to $50,000,000 per annum of Net Cash Proceeds (the “Disposition Reinvestment Amount”), in productive assets of a kind then used or usable in the business of the Loan Parties (provided that proceeds of Sale/Leaseback Transactions permitted pursuant to Section 7.09 shall only be permitted to be reinvested in replacement facilities), within one (1) year after the date of such Disposition; provided that (i) pending any such reinvestment, such Disposition Reinvestment Amount shall be held at all times prior to such reinvestment in a deposit account subject to a Deposit Account Control Agreement, (ii) proceeds received from sale of Collateral may only be reinvested in Collateral, (iii) proceeds received from assets sold by a Loan Party must be reinvested in a Loan Party and (iv) the Disposition Reinvestment Amount shall be shared with reinvestments made pursuant to Section 2.12(d). In the event that the Disposition Reinvestment Amount is not reinvested by the applicable Person as permitted pursuant to the foregoing sentence within the time periods provided, or a Default or Event of Default occurs prior to such reinvestment, the Borrower shall immediately pay such Disposition Reinvestment Amount to the Administrative Agent as a mandatory payment of the Obligations.
Notwithstanding the foregoing, all Net Cash Proceeds received from the sale of real estate assets and the Bounce Sale must be used to pay down the Term Loans, as set forth above and shall not benefit from the reinvestment rights set forth above. Nothing in this clause (c) shall authorize the Borrower or any Subsidiary to effect any Disposition except to the extent permitted by this Agreement.
(d)Seventy percent (70%) of the Net Cash Proceeds from any Event of Loss of any of the Borrower or any of its Subsidiaries occurring on or after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans on a pro rata basis and thirty percent (30%) of the Net Cash Proceeds from any Event of Loss of any of the Borrower or any of its Subsidiaries occurring on or after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-3 Term Loans on a pro rata basis (it being understood that, subject to the following sentence, not less than 100% of the Net Cash Proceeds from any Event of Loss in excess of $5,000,000 in the aggregate in any fiscal year shall be subject to the mandatory prepayment set forth in this Section 2.12(d) and applied to the Tranche B-2 Term Loans and the Tranche B-3 Term Loans in accordance with the allocation set forth above). Notwithstanding the foregoing and provided no Default or Event of Default has occurred and is continuing on the date of such Event of Loss or on the date of, or any date after such Event of Loss and prior to, any reinvestment pursuant to this clause (d), such Person shall not be required to pay such Net Cash Proceeds to the Administrative Agent for payment of the Obligations to the extent such Person reinvests up to Disposition Reinvestment Amount of such Net Cash Proceeds (the “Event of Loss Reinvestment Amount”), to repair or replace the assets subject to such Event of Loss, within one (1) year after the date of such Event of Loss; provided that (i) pending any such reinvestment, such Event of Loss Reinvestment Amount shall be held at all times prior to such reinvestment in a deposit account subject to a Deposit Account Control Agreement and (ii) the Disposition Reinvestment Amount shall be shared with any reinvestments made pursuant to Section 2.12(c) above. In the event that the Event of Loss Reinvestment Amount is not reinvested by such Person as permitted by the foregoing sentence within the time periods provided or a Default or Event of
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Default occurs prior to such reinvestment, the Borrower shall immediately pay such Event of Loss Reinvestment Amount to the Administrative Agent as a mandatory payment of the Obligations.
(e)Not later than five (5) Business Days after the date on which the annual financial statements are, or are required to be, delivered under Section 5.1(a) with respect to each Excess Cash Flow Period, the Borrowers shall calculate Excess Cash Flow for such Excess Cash Flow Period and the Borrower shall apply an amount equal to (i) the Required Percentage of such Excess Cash Flow minus (ii) to the extent not financed using the proceeds of the incurrence of Indebtedness), the sum of (A) the amount of any voluntary payments during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (A), the amount of any voluntary payments after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (e)) of (x) Term Loans (it being understood that the amount of any such payment constituting a Discounted Voluntary Prepayment shall be calculated to equal the amount of cash used and not the principal amount deemed prepaid therewith) and (y) other Indebtedness secured by a Lien on Collateral that ranks pari passu with the Liens securing the Obligations (provided that (i) in the case of the prepayment of any revolving Indebtedness, there was a corresponding reduction in commitments and (ii) the maximum amount of each such prepayment of Indebtedness that may be counted for purposes of this clause (A)(y) shall not exceed the amount that would have been prepaid in respect of such Indebtedness if such prepayment had been applied on a ratable basis among the Term Loans and such other Indebtedness (determined based on the aggregate outstanding principal amount of Term Loans and the aggregate principal amount of such other Indebtedness on the date of such prepayment of such other Indebtedness)) and (B) the amount of any prepayment of Revolving Loans provided that such Revolving Loans are accompanied by a permanent voluntary reduction of Revolving Commitments during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (B), the amount of any prepayment of Revolving Loans accompanied by permanent voluntary reductions of Revolving Commitments after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (e)) to prepay Tranche B-2 Term Loans and Tranche B-3 Term Loans, on a pro rata basis; provided that solely with respect to the Excess Cash Flow accrued during the fiscal year ending December 31, 2026, the first $50,000,000 of any Excess Cash Flow shall be used to prepay Tranche B-3 Term Loans only. Such calculation will be set forth in a certificate signed by a Responsible Officer of the Borrower delivered to the Administrative Agent setting forth the amount, if any, of Excess Cash Flow for such fiscal year, the amount of any required prepayment in respect thereof and the calculation thereof in reasonable detail.
(f)The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Sections 2.12(a), 2.12(c), 2.12(d) or 2.12(e) at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent shall promptly notify each Term Loan Lender of the contents of any such prepayment notice and of such Term Loan Lender’s ratable portion of such prepayment (based on such Lender’s pro rata share of each relevant Class of Term Loans). Any Term Loan Lender (a “Declining Lender”) may elect, by delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Loan Lender’s receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to Sections 2.12(a), 2.12(c), 2.12(d) or 2.12(e) not be made (such declined amounts, the “Retained Declined Proceeds”). If a Term Loan Lender fails to deliver the notice setting forth such rejection of a prepayment to the Administrative Agent within the time frame specified above or such notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. In the event that the aggregate amount of Retained Declined Proceeds is greater than $0, such amount shall be retained by the Borrower.
(g)(i) If the aggregate Initial Revolving Credit Exposure at such time exceeds the Initial Revolving Commitments then in effect or (ii) the aggregate Non-Extended Revolving Credit Exposure at such time exceeds the Non-Extended Revolving Commitments then in effect, then, within three (3) Business Days after receipt of the Administrative Agent’s notice to the Borrower, the Borrower shall prepay the applicable Revolving Loans or, in the case of clause (i) above, Swingline Loans and/or Cash Collateralize the LC Exposure, in each case, in an aggregate amount equal to such excess.
(h)Except as expressly specified herein, any payment due hereunder shall be applied to reduce the subsequent scheduled repayments of the Term Loans on a pro rata basis in direct order of maturity, or as otherwise provided in any Incremental Amendment.
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Section 2.13. Interest on Loans.
(a)The Borrower shall pay interest on each (i) Base Rate Loan at the Base Rate in effect from time to time, and (ii) Term SOFR Loan, at the Adjusted Term SOFR for the applicable Interest Period in effect for such Loan, plus, in each case, the Applicable Margin, with respect to such Type and Class of Loan in effect from time to time.
(b)The Borrower shall pay interest on each Swingline Loan at the Swingline Rate in effect from time to time.
(c)Notwithstanding clauses (a) and (b) above, if an Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) has occurred and is continuing, the Borrower shall pay interest (“Default Interest”) with respect to all Term SOFR Loans at the rate per annum equal to 2.0% above the otherwise applicable interest rate for such Term SOFR Loans for the then-current Interest Period until the last day of such Interest Period, and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate per annum equal to 2.0% above the otherwise applicable interest rate for Base Rate Loans.
(d)Interest on the principal amount of all Loans shall accrue from and including the date such Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Revolving Commitment Termination Date or the applicable Term Loan Maturity Date, as the case may be. Interest on all outstanding Term SOFR Loans shall be payable on the last day of each Interest Period applicable thereto, and, in the case of any Term SOFR Loans having an Interest Period in excess of three months, on each day which occurs three months, after the initial date of such Interest Period, and on the applicable Revolving Commitment Termination Date or the applicable Term Loan Maturity Date, as the case may be, in each case in arrears. Interest on each Swingline Loan shall be payable monthly in arrears. Interest on any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be payable on demand.
(e)The Administrative Agent shall determine each interest rate applicable to the Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing. Any such determination shall be conclusive and binding for all purposes, absent manifest error.
Section 2.14. Fees.
(a)The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.
(b)The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee (the “Commitment Fee”), which shall accrue at the Applicable Percentage per annum on the average daily amount of the unused applicable Revolving Commitment of such Lender during the applicable Availability Period. For purposes of computing commitment fees with respect to the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure of such Lender. The Commitment Fee accrued through and including the last day of March, June, September and December of each year shall be payable on the fifteenth (15th) day following such last day, commencing on the first such date to occur after the Closing Date; provided, that, for avoidance of doubt, the Borrower shall only pay the pro rata share of the Commitment Fee due for the first quarter after the Closing Date or for the quarter in which the Termination Date occurs; provided, further, that all such Commitment Fees shall be payable on the date upon which all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving Facilities shall have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated or expired (or been cash collateralized) and the Revolving Commitments have been terminated (such date, the “Termination Date”). The Commitment Fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such Revolving Credit Lenders’ respective Revolving Commitment.
(c)The Borrower agrees to pay (i) to the Administrative Agent, for the account of each Initial Revolving Credit Lender, a letter of credit fee with respect to its participation in each Letter of Credit (a “Revolving
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LC Participation Fee”), which shall accrue at a rate per annum equal to the Applicable Margin for Term SOFR Initial Revolving Loans then in effect on the average daily amount of such Lender’s LC Exposure attributable to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to but excluding the date on which such Letter of Credit expires or is drawn in full (including without limitation any LC Exposure that remains outstanding after the Initial Revolving Commitment Termination Date) and (ii) to each applicable Issuing Bank for its own account a facing fee, which shall accrue at the rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the Initial Revolving Facility Availability Period (or until the date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as such Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Notwithstanding the foregoing, if the interest rate on the Initial Revolving Loans is increased to the Default Interest pursuant to Section 2.13(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i) above shall automatically be increased by an additional 2% per annum. The Revolving L/C Participation Fees accrued through and including the last day of March, June, September and December of each year shall be payable on the fifteenth (15th) day following such last day, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand.
(d)As consideration for the Tranche B-2 Term Lenders’ commitments to provide the Tranche B-2 Term Loan Commitment or, without duplication (including with respect to any Loans funded by the Fronting Lender), agreements to purchase the Tranche B-2 Term Loans under this Agreement, the Borrower agrees to pay to the Administrative Agent for the account of each such Lender a commitment premium equal to 2.00% of the aggregate principal amount of Tranche B-2 Term Loans actually funded by such Tranche B-2 Term Lenders (including, without duplication, the Fronting Lender on behalf of other Tranche B-2 Term Lenders) (without regard to original issue discount or any other net funding arrangements) on the Closing Date (the premium set forth in this Section 2.14(d), the “Term Loan Commitment Premium”); provided that on the Closing Date such Term Loan Commitment Premium shall be paid in kind by adding such amount to the outstanding principal amount of the Tranche B-2 Term Loans (and thereafter such amount shall be deemed principal bearing interest for all purposes hereunder) and Schedule I reflects the Tranche B-2 Term Loan amounts inclusive of the Term Loan Commitment Premium.
(e)The Loan Parties, Administrative Agent and Lenders agree that, for U.S. federal income tax purposes, (i) the Term Loan Commitment Premium, if paid in kind by adding such amount to the outstanding principal amount of the Tranche B-2 Term Loans, shall be treated as increasing the “stated redemption price at maturity” (within the meaning of Treasury Regulation Section 1.1273-1(b)) of the Tranche B-2 Term Loans and (ii) the Steerco Commitment Premium shall be treated as additional consideration in respect of the Existing Tranche B-2 Term Loans or Existing Tranche B-3 Term Loans, as applicable (the “Intended Tax Treatment”). The Loan Parties, Administrative Agent and Lenders shall each prepare its respective U.S. federal income tax returns in a manner consistent with the Intended Tax Treatment, and none of the Loan Parties, Administrative Agent or Lenders shall take any position or action with respect to U.S. taxes (whether in audits, tax returns or otherwise) inconsistent with the Intended Tax Treatment, except as otherwise required by a “determination” within the meaning of Section 1313(a) of the Code. The Loan Parties, Administrative Agent and Lenders agree that, as of the date hereof, no deduction or withholding of tax is required by law with respect to the payment of the Term Loan Commitment Premium or Steerco Commitment Premium.
Section 2.15. Computation of Applicable Margin, Applicable Percentage, Interest and Fees.
(a)The Applicable Margin and the Applicable Percentage with respect to the Non-Extended Revolving Loans, shall be determined and adjusted quarterly on the date that is two Business Days after the date on which the Borrower provides the Compliance Certificate in accordance with Section 5.1(d); provided, that (i) the Applicable Percentage and the Applicable Margin with respect to the Non-Extended Revolving Loans, from the Closing Date until the date that is two Business Days after the delivery of the Compliance Certificate required to be delivered hereunder pursuant to Section 5.1(d) for the Fiscal Quarter ending following the Closing Date, shall be at Level 2 (as set forth in the definition of “Applicable Rate”), and, thereafter, such level shall be determined by the then current Senior Secured Net Leverage Ratio, and (ii) if the Borrower fails to provide the Compliance Certificate by the date such certificate is required to be delivered under Section 5.1(d), the Applicable Percentage and the Applicable Margin with respect to the Non-Extended Revolving Loans, from such date shall be at Level 1 until such
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time as an appropriate Compliance Certificate is provided, whereupon the level shall be determined by the then current Senior Secured Net Leverage Ratio.
(b)All computations of interest and fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable (to the extent computed on the basis of days elapsed), except that interest computed by reference to the Base Rate only at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year). Each determination by the Administrative Agent of an interest amount or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.
Section 2.16. Changed Circumstances.
(a)Circumstances Affecting Adjusted Term SOFR Availability. Unless and until a Benchmark Replacement Rate is implemented in accordance with clause (b) below, in connection with any request for a Term SOFR Loan or a conversion to or continuation thereof or otherwise, if for any reason,
(i)the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant interbank market, reasonable and adequate means do not exist for ascertaining the Adjusted Term SOFR for such Interest Period with respect to a proposed Term SOFR Loan, or
(ii)the Administrative Agent shall have received notice from the Required Lenders, as the case may be, that such Lenders have determined (which determination shall be conclusive and binding absent manifest error) that the Adjusted Term SOFR does not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their Term SOFR Loans for such Interest Period,
the Administrative Agent shall give written notice to the Borrower and to the Lenders as soon as practicable thereafter. In the case of Term SOFR Loans, until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to make Term SOFR Revolving Loans or to continue or convert outstanding Loans as or into Term SOFR Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans on the last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one Business Day before the date of any Term SOFR Revolving Borrowing for which a Notice of Borrowing has previously been given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.
(b)Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event with respect to any Benchmark, the Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5 th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.16(b) will occur prior to the applicable Benchmark Transition Start Date.
(c)Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.16(e). Any determination, decision or election that
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may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.16, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.16.
(e)Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f)Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of any affected Adjusted Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans and (ii) any outstanding affected Adjusted Term SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
Section 2.17. Illegality. If any Change in Law shall make it unlawful or impossible for any Lender to make, maintain or fund any Term SOFR Loan and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Term SOFR Loans, or to continue or convert outstanding Loans as or into Term SOFR Loans, shall be suspended. In the case of the making of a Term SOFR Borrowing, such Lender’s Loan shall be made as a Base Rate Loan as part of the same Borrowing for the same Interest Period and if the affected Term SOFR Loan is then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the last day of the then current Interest Period applicable to such Term SOFR Loan if such Lender may lawfully continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Term SOFR Loan to such date. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.
Section 2.18. Increased Costs.
(a)If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement that is not otherwise included in the determination of the Adjusted Term SOFR hereunder against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted Term SOFR) or any Issuing Bank;
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(ii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)impose on any Lender or Issuing Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender, Issuing Bank or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, Issuing Bank or other Recipient, the Borrower shall promptly pay to any such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b)If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Revolving Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), then from time to time upon written request of such Lender or Issuing Bank the Borrower shall promptly pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c)A certificate of a Lender, Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, Issuing Bank, such other Recipient or any of their respective holding companies, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender, Issuing Bank or such other Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d)Failure or delay on the part of any Lender, Issuing Bank or such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s, Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, Issuing Bank or any other Recipient pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender, Issuing Bank or such other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, Issuing Bank’s or such other Recipient’s intention to claim compensation therefor (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
Section 2.19. Funding Indemnity. In the event of (a) the payment of any principal of a Term SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion or continuation of a Term SOFR Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower to borrow, prepay, convert or continue any Term SOFR Loan on the date specified in any applicable notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the Borrower shall compensate each Lender, within five (5) Business Days after written demand from such Lender, for any loss, cost or expense attributable to such event. In the case of a Term SOFR Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest that would have accrued on the principal amount of such Term SOFR Loan if such event had not occurred
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at the Adjusted Term SOFR applicable to such Term SOFR Loan for the period from the date of such event to the last day of the then current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Term SOFR Loan) over (B) the amount of interest that would accrue on the principal amount of such Term SOFR Loan for the same period if the Adjusted Term SOFR were set on the date such Term SOFR Loan was prepaid or converted or the date on which the Borrower failed to borrow, convert or continue such Term SOFR Loan. A certificate setting forth: (i) any additional amount payable under this Section 2.19 and (ii) in reasonable detail the basis of the calculation of such additional amount, submitted to the Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent manifest error.
Section 2.20. Taxes.
(a)Defined Terms. For purposes of this Section 2.20, the term “Lender” includes the Issuing Banks and the Swingline Lender and the term “Applicable Law” includes FATCA.
(b)Payments Free of Taxes. All payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of any applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by any applicable withholding agent, then such withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.20) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d)Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate (i) as to the amount of such payment or liability and (ii) setting forth in reasonable detail the basis of the calculation of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.4(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f)Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section 2.20, the Borrower or other Loan Party shall, to the extent available to the Borrower or such other Loan Party, deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
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(g)Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.20(g)(A), 2.20(g)(B) and 2.20(g)(D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
Without limiting the generality of the foregoing,
(A)Any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of whichever of the following is applicable:
(i)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party. IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to such tax treaty;
(ii) IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.20A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code, and that no payment made to such Foreign Lender in connection with any Loan Document is effectively connected with the conduct by such Foreign Lender of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(iv) to the extent a Foreign Lender is not the beneficial owner, IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20B or Exhibit 2.20C, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20D on behalf of such direct and indirect partner(s);
(C)any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary
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documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(E)Notwithstanding any other provision of this Section 2.20(g), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(F)Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 2.20(g).
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.
(h)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.20 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph (h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, Section 2.19 or Section 2.20, or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the
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Payment Office, except payments to be made directly to any Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Section 2.18, Section 2.19 and Section 2.20 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b)[reserved].
(c)If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement as in effect on the Closing Date (including the application of funds arising from the existence of a Defaulting Lender or Disqualified Institution) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. For purposes of subclause (b)(i) of the definition of Excluded Taxes, a Lender that acquires a participation pursuant to this Section 2.21(c) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) and/or Loan(s) to which such participation relates.
(d)Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 2.22. Letters of Credit.
(a)During the Initial Revolving Facility Availability Period, each Issuing Bank, in reliance upon the agreements of the other Initial Revolving Credit Lenders pursuant to Section 2.22(d) and (e), agrees to issue, at the request of the Borrower, Letters of Credit for the account of the Borrower or its Subsidiaries on the terms and conditions hereinafter set forth; provided, that (i) each Letter of Credit shall expire on the earlier of (A) the date one year after the date of issuance of such Letter of Credit (or in the case of any renewal or extension thereof, one year after such renewal or extension) and (B) the date that is five (5) Business Days prior to the Initial Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a stated amount of at least $100,000; (iii) the Borrower may not request any Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC Exposure would exceed the LC Commitment or (B) the Aggregate Initial Revolving Credit Exposure would exceed the Aggregate Initial Revolving Commitment Amount then in effect, (C) the LC Exposure in respect of all Letters of Credit issued by such Issuing Bank would exceed the LC Commitment of such Issuing Bank, or (D) the Initial
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Revolving Credit Exposure of any Initial Revolving Credit Lender would exceed such Initial Revolving Credit Lender’s Initial Revolving Credit Commitment and (iv) the Borrower shall not request, and the Issuing Banks shall have no obligation to issue, any Letter of Credit the proceeds of which would be made available to any Person (I) to fund any activity or business of or with any Sanctioned Person or in any Sanctioned Countries, that at the time, of such funding, is the subject of any Sanctions, or (II) in any manner that would result in a violation of any Sanctions by any party to this Agreement. Each Initial Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank(s) without recourse a participation in each Letter of Credit equal to such Initial Revolving Credit Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit on the date of issuance with respect to all other Letters of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Initial Revolving Commitment of each Lender by an amount equal to the amount of such participation. The Existing Letters of Credit shall be Letters of Credit for all purposes under this Agreement.
(b)To request the issuance of a Letter of Credit or any amendment, renewal or extension of an outstanding Letter of Credit, the Borrower shall give the applicable Issuing Bank and the Administrative Agent irrevocable written notice at least three (3) Business Days prior to the requested date of such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be issued (or amended, extended or renewed, as the case may be), the expiration date of such Letter of Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. In addition to the satisfaction of the conditions in Article III, the issuance of such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further conditions that such Letter of Credit shall be in such form and contain such terms as such Issuing Bank shall approve and that the Borrower shall have executed and delivered any additional applications, agreements and instruments relating to such Letter of Credit as such Issuing Bank shall reasonably require; provided, that in the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of this Agreement shall control.
(c)At least two Business Days prior to the issuance of any Letter of Credit, the applicable Issuing Bank will confirm in writing with the Administrative Agent that the Administrative Agent has received such notice and if not, such Issuing Bank will provide the Administrative Agent with a copy thereof. Unless such Issuing Bank has received notice from the Administrative Agent on or before the Business Day immediately preceding the date such Issuing Bank is to issue the requested Letter of Credit (1) directing such Issuing Bank not to issue the Letter of Credit because such issuance is not then permitted hereunder because of the limitations set forth in Section 2.22(a) or that one or more conditions specified in Article III are not then satisfied, then, subject to the terms and conditions hereof, such Issuing Bank shall, on the requested date, issue such Letter of Credit in accordance with such Issuing Bank’s usual and customary business practices.
(d)The applicable Issuing Bank shall examine all documents purporting to represent a demand for payment under a Letter of Credit promptly following its receipt thereof. Such Issuing Bank shall notify the Borrower and the Administrative Agent of such demand for payment and whether such Issuing Bank has made or will make a LC Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Banks and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Banks for any LC Disbursements paid by such Issuing Bank in respect of such drawing, without presentment, demand or other formalities of any kind. Unless the Borrower shall have notified the applicable Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored that the Borrower intends to reimburse such Issuing Bank for the amount of such drawing in funds other than from the proceeds of Initial Revolving Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting the Initial Revolving Credit Lenders to make a Base Rate Initial Revolving Borrowing on the date on which such drawing is honored in an exact amount due to the applicable Issuing Bank; provided, that for purposes solely of such Borrowing, the conditions precedent set forth in Section 3.2 shall not be applicable. The Administrative Agent shall notify the Initial Revolving Credit Lenders of such Borrowing in accordance with Section 2.4, and each Initial Revolving Credit Lender shall make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the applicable Issuing Bank(s) in accordance with Section 2.6. The proceeds of such Borrowing shall be applied directly by the Administrative Agent to reimburse the applicable Issuing Bank for such LC Disbursement.
(e)If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Initial Revolving
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Credit Lender (other than the applicable Issuing Bank(s)) shall be obligated to fund the participation that such Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of such LC Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each Initial Revolving Credit Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may have against the applicable Issuing Bank(s) or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of the Aggregate Initial Revolving Commitments, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. On the date that such participation is required to be funded, each Initial Revolving Credit Lender shall promptly transfer, in immediately available funds, the amount of its participation to the Administrative Agent for the account of the applicable Issuing Bank(s). Whenever, at any time after such Issuing Bank has received from any such Lender the funds for its participation in a LC Disbursement, such Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or such Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of such payment; provided, that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to the Administrative Agent or such Issuing Bank any portion thereof previously distributed by the Administrative Agent or such Issuing Bank to it.
(f)To the extent that any Initial Revolving Credit Lender shall fail to pay any amount required to be paid pursuant to paragraph (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to the applicable Issuing Bank (through the Administrative Agent) on such amount from such due date to the date such payment is made at a rate per annum equal to the Federal Funds Rate; provided, that if such Lender shall fail to make such payment to such Issuing Bank within three (3) Business Days of such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest on such amount at the rate set forth in Section 2.13(c).
(g)If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Majority Initial Revolving Credit Lenders demanding that its reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the applicable Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon; provided, that such obligation to Cash Collateralize the reimbursement obligations of the Borrower with respect to Letters of Credit shall become effective immediately, and such deposit shall become immediately due and payable, without demand or notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Section 8.1. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The Borrower agrees to execute any documents and/or certificates to effectuate the intent of this paragraph. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest and profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it had not been reimbursed and to the extent so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, with the consent of the Majority Initial Revolving Credit Lenders, be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. If the Borrower is required to Cash Collateralize its reimbursement obligations with respect to Letters of Credit as a result of the occurrence of an Event of Default, such Cash Collateral so posted (to the extent not so applied as aforesaid), including interest and profits, if any, on any such investments, as aforesaid, shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
(h)Promptly following the end of each calendar quarter, the applicable Issuing Bank shall deliver (through the Administrative Agent) to each Lender and the Borrower a report describing the aggregate Letters of Credit outstanding at the end of such Fiscal Quarter. Upon the request of any Lender from time to time, the applicable Issuing Bank shall deliver to such Lender any other information reasonably requested by such Lender with respect to each Letter of Credit then outstanding.
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(i)The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever and irrespective of any of the following circumstances:
(i)Any lack of validity or enforceability of any Letter of Credit or this Agreement;
(ii)The existence of any claim, set-off, defense or other right which the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be acting), any Lender (including any Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto or thereto or any unrelated transaction;
(iii)Any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;
(iv)Payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document to such Issuing Bank that does not comply with the terms of such Letter of Credit;
(v)Any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.22, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder; or
(vi)The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Banks, the Lenders nor any Related Party of any of the foregoing shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Banks; provided, that the foregoing shall not be construed to excuse the Issuing Banks from liability to the Borrower to the extent of any actual direct damages (as opposed to special, indirect (including claims for lost profits or other consequential damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that are caused by an Issuing Bank’s failure to exercise due care when determining whether drafts or other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised due care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(j)If the Initial Revolving Commitment Termination Date in respect of any tranche of Initial Revolving Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Initial Revolving Commitments in respect of which the Initial Revolving Commitment Termination Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Initial Revolving Credit Lenders to purchase participations therein pursuant to Section 2.22(a) and to make Initial Revolving Loans and payments in respect thereof pursuant to Sections 2.22(d) and 2.22(e)) under (and ratably participated in by Lenders pursuant to) the Initial Revolving Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Initial Revolving Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 2.22(g). If, for any reason, such Cash Collateral is not provided or the reallocation does not occur, the Initial Revolving Credit Lenders under the maturing tranche shall continue to be responsible for their participating interests in the Letters of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the second
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preceding sentence, the occurrence of an Initial Revolving Commitment Termination Date with respect to a given tranche of Initial Revolving Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Initial Revolving Credit Lenders in any Letter of Credit issued before such Initial Revolving Commitment Termination Date. Commencing with the Initial Revolving Commitment Termination Date of any tranche of Initial Revolving Commitments, the sublimit for Letters of Credit shall be agreed with the Initial Revolving Credit Lenders under the extended tranches.
(k)Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued and subject to Applicable Laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.
Section 2.23. Cash Collateral; Defaulting Lenders.
(a)At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize such Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.23(b)(i)(D) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(i)The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ LC Exposure, to be applied pursuant to clause (ii) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(ii)Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.23 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund its LC Exposure (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(iii)Cash Collateral (or the appropriate portion thereof) provided to reduce the applicable Issuing Bank’s LC Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.23(a) following (A) the elimination of the applicable LC Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (B) the determination by the Administrative Agent and such Issuing Bank that there exists excess Cash Collateral; provided that, subject to Section 2.23(b) the Person providing Cash Collateral and such Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided, further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
(b) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(A)Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders, Majority Initial Revolving Credit Lenders, Majority Non-Extended Revolving Credit Lenders, Majority
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Tranche B-2 Term Loan Lenders, Majority Tranche B-3 Term Loan Lenders and Supermajority Required Lenders.
(B)Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.7 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks or the Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.23(a); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.23(a); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded LC Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Initial Revolving Commitments without giving effect to Section 2.23(b)(i)(D). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(C)(I) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.14(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(II) Each Defaulting Lender shall be entitled to receive Revolving LC Participation Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.23(a).
(III) With respect to any fee not required to be paid to any Defaulting Lender pursuant to clause (II) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure that has been reallocated to such Non-Defaulting Lender pursuant to clause (D) below, (y) pay to the Issuing Banks, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Banks’ Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(D)All or any part of such Defaulting Lender’s LC Exposure and Swingline Exposure shall be reallocated among the Non-Defaulting Lenders with Initial Revolving Commitments in accordance with their respective Pro Rata Share (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Initial Revolving Credit Exposure of
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any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Initial Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(E)If the reallocation described in clause (D) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.23(a).
(ii)If the Borrower, the Administrative Agent, the Swingline Lender and the Issuing Banks agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Initial Revolving Commitments (without giving effect to Section 2.23(b)(i)(D)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii)So long as any Lender is a Defaulting Lender, (A) no Swingline Lender shall be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (B) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
Section 2.24. Incremental Facilities.
(a)The Borrower may from time to time on or after the Closing Date, by written notice to the Administrative Agent, request (i) an increase to the existing Initial Revolving Commitments (any such increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, the “New Commitments” and each, individually, a “New Commitment”), in any case, by an amount not in excess of the sum of (x) the Incremental Starter Basket plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First Lien Gross Leverage Ratio on a Pro Forma Basis does not exceed 2.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 4.50 to 1.00 and (3) in the case of loans under such New Commitments that are unsecured, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed 5.00 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Closing Date and Revolving Loans in respect of Revolving Commitments outstanding on the Closing Date (and not in excess of $225,000,000) pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such time except to the extent funded with the proceeds of Indebtedness. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent) and (ii) the identity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit Lender” or “New Term Loan
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Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent (and/or its Affiliates) may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment; provided, further, that, to the extent the consent of any party hereto is required for a proposed assignment under Section 10.4(b)(iii), such consent requirement shall apply to any New Lender under this Section 2.24 as though such New Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments shall become effective as of such Increased Amount Date; provided, that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (ii) the representations and warranties set forth in this Agreement and the other Loan Documents shall be true and correct as in all material respects of such Increased Amount Date before and after giving effect to such New Commitments; (iii) if the New Commitments are permitted to be incurred pursuant to sub-clause (y) of the first sentence of this clause (a), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the First Lien Gross Leverage Ratio, Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of such sub-clause (y) have been met; (iv) for each New Lender (other than an existing Lender), the New Commitments shall be effected pursuant to one or more joinder agreements in form and substance reasonably satisfactory to the Administrative Agent executed and delivered by the Borrower, such New Lender, and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.20(g); (v) the Borrower shall make any payments required, if any, pursuant to Section 2.19 in connection with the New Revolving Commitments; (vi) both before and after giving effect to the making of any New Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (vii) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; (viii) the Borrower may not use the proceeds of any New Loans incurred utilizing the Incremental Starter Basket to repay or prepay any Indebtedness secured by Liens that rank junior to the Liens on the Collateral securing the Facilities; (ix) the proceeds of any New Loans shall constitute a new money financing and shall not be used, directly or indirectly, to refinance, repay, prepay, replace, exchange, defease, discharge or otherwise retire any Junior Debt; and (x) the New Loans (and corresponding New Commitments) shall satisfy the Incremental Incurrence Conditions (in addition to the requirements set forth in clauses (b) and (c) below).
(b)On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the terms and conditions herein (i) each of the Initial Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders agreeing to provide New Revolving Commitments, and each of the New Revolving Credit Lenders shall purchase from each of the Initial Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Initial Revolving Loans outstanding on such Increased Amount Date, if any, as shall be necessary in order that, after giving effect to all such assignments and purchases, such Initial Revolving Loans will be held by existing Initial Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Initial Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Initial Revolving Commitments, (ii) each New Revolving Commitment shall be deemed for all purposes an Initial Revolving Commitment and each New Revolving Loan shall be deemed, for all purposes, an Initial Revolving Loan and (iii) each New Revolving Credit Lender shall become an Initial Revolving Credit Lender with respect to the New Revolving Commitment and all matters relating thereto. The terms and provisions of the New Revolving Commitments and the New Revolving Loans shall be identical to the Initial Revolving Commitments and the Revolving Loans respectively.
(c)On any Increased Amount Date on which any New Term Loan Commitments are effective, subject to the satisfaction of the terms and conditions herein and in the applicable Incremental Amendment (as defined below), (x) each New Term Loan Lender of any series shall make a term loan to the Borrower (each a “Term Loan”) in an amount equal to its New Term Loan Commitment of such series, and (y) each New Term Loan Lender shall become a Term Loan Lender hereunder with respect to the New Term Loan Commitment of such series and the Term Loans of such series made pursuant thereto. The terms and provisions of any loans extended pursuant to the New Term Loan Commitments (including interest rate margins, prepayment premiums, call protection, fees, amortization, mandatory and optional prepayments (including Term Loan purchase rights, if any) associated with such New Commitments), shall be established pursuant to an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, the New Term Loan Lenders and the Borrower (each, an “Incremental Amendment”); provided, that, (i) any Term Loans funded under the New Term Loan Commitments
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(each, a “New Term Loan”) incurred pursuant to clause (a) above shall rank pari passu or, at the option of the Borrower, junior in right of payment and/or security with the Liens on the Collateral securing the Secured Obligations (provided that if such New Term Loans rank junior in right of payment and security with the Liens on the Collateral securing the Secured Obligations, such New Term Loans (x) shall be established as a separate Class of Term Loans from the existing Term Loans, (y) such New Term Loans shall be subject to a Junior Lien Intercreditor Agreement and in accordance with the Incremental Incurrence Conditions, (z) for the avoidance of doubt, if such New Term Loans rank junior in right of security with the Liens on the Collateral securing the Secured Obligations, such New Term Loans shall not be subject to clause (vii) below); (ii) the final maturity date of any such New Term Loans shall be no earlier than the Latest Maturity Date; (iii) the Weighted Average Life to Maturity of any such New Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the existing Term Loans at the time of incurrence of such New Term Loans; (iv) the Borrower shall obtain a separate CUSIP number for any New Term Loans issued if such New Term Loans are determined by the Borrower to not be fungible with the existing Term Loans issued on the Closing Date; (v) [reserved]; (vi) [reserved]; (vii) the All-in Yield shall be as agreed by the Borrower and the applicable New Term Loan Lenders; provided that with respect to any New Term Loan (I) that is secured by Liens on the Collateral that are pari passu in right of security with the Liens securing the Obligations, (A) the All-in Yield in respect of any such New Term Loans may exceed the All-in Yield in respect of the Tranche B-2 Term Loans by no more than 0.50%, or, if it does so exceed such All-in Yield (such difference, the “Tranche B-2 Term Yield Differential”) then the Applicable Rate (or the “interest rate floor” as provided in the following proviso) applicable to such Tranche B-2 Term Loans shall be increased such that after giving effect to such increase, the Tranche B-2 Term Yield Differential shall not exceed 0.50% (it being understood that if such New Term Loans include an interest rate floor greater than the applicable interest rate floor under the Tranche B-2 Term Loans (or any Refinancing Term Loans related thereto), such differential between the interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Tranche B-2 Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Tranche B-2 Term Loans would cause an increase in the Applicable Rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Tranche B-2 Term Loans shall be increased to the extent of such differential between interest rate floors and (B) in no event shall any such New Term Loans contain any “make-whole” or prepayment premiums, exit fee or similar fee or premium that is more favorable to any New Term Loan Lender than any such then-applicable premiums or fees payable to the Lenders holding Tranche B-2 Term Loans (this proviso, the “Term B-2 MFN Protection”)) and (II) incurred that is secured by Liens on the Collateral that are pari passu in right of security with the Liens securing the Obligations, (A) the All-in Yield in respect of any such New Term Loans may exceed the All-in Yield of the Tranche B-3 Term Loans by no more than 0.50%, or, if it does so exceed such All-in Yield (such difference, the “Tranche B-3 Term Yield Differential”), then the Applicable Rate (or the “interest rate floor” as provided in the following proviso) applicable to such Tranche B-3 Term Loans shall be increased such that after giving effect to such increase, the Tranche B-3 Term Yield Differential shall not exceed 0.50% (it being understood that if such New Term Loans include an interest rate floor greater than the applicable interest rate floor under the Tranche B-3 Term Loans, such differential between the interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Tranche B-3 Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Tranche B-3 Term Loans would cause an increase in the Applicable Rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Tranche B-3 Term Loans shall be increased to the extent of such differential between interest rate floors and (B) in no event shall any such New Term Loans contain any “make-whole” or prepayment premiums, exit fee or similar fee or premium that is more favorable to any New Term Loan Lender than any such then-applicable premiums or fees payable to the Lenders holding Tranche B-3 Term Loans (this proviso, the “Term B-3 MFN Protection” and, together with the Term B-2 MFN Protection, the “MFN Protection”)). Further, all Term Loans made pursuant to the New Term Loan Commitments (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other Loan Documents. The Borrower, the Administrative Agent and the New Term Loan Lenders may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect to the provisions of this Section 2.24.
(d)The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date. Promptly following each Increased Amount Date, the Administrative Agent shall notify all Lenders (including New Lenders) of the identity of New Lenders and the New Commitments of all Lenders (after giving effect to the assignments contemplated by this Section 2.24) and Schedule II shall be deemed to be updated to reflect any changes resulting from New Revolving Commitments.
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(e)Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that:
(i)before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 3.2 shall be satisfied;
(ii)the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Loan Maturity Date of the refinanced Term Loans;
(iii)the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv)the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v)all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms (other than as expressly provided in this Agreement), which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Term Loan Maturity Date or are otherwise reasonably acceptable to the Administrative Agent), as determined by the Borrower in good faith. In addition, notwithstanding the foregoing, the Borrower may establish Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Commitment (regardless of whether Revolving Loans are outstanding under such Revolving Commitments at the time of incurrence of such Refinancing Term Loans), so long as (1) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Commitments terminated at the time of incurrence thereof, (2) if the Revolving Credit Exposure outstanding on the Refinancing Effective Date would exceed the aggregate amount of Revolving Commitments outstanding in each case after giving effect to the termination of such Revolving Commitments, the Borrower shall take one or more actions such that such Revolving Credit Exposure does not exceed such aggregate amount of Revolving Commitments in effect on the Refinancing Effective Date after giving effect to the termination of such Revolving Commitments (it being understood that (x) such Refinancing Term Loans may be provided by the Lenders holding the Revolving Commitments being terminated and/or by any other person that would be a permitted Assignee hereunder and (y) the proceeds of such Refinancing Term Loans shall not constitute Net Proceeds hereunder), (3) the Weighted Average Life to Maturity of the Refinancing Term Loans shall be no shorter than the remaining life to termination of any existing Term Loans , (4) the final maturity date of the Refinancing Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (5) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms (except as provided herein), which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans (except to the extent such covenants and other terms apply solely to any period after the Term Loan Maturity Date or are otherwise reasonably acceptable to the Administrative Agent), as determined by the Borrower in good faith;
(vi)(x) with respect to Refinancing Term Loans secured by Liens on Collateral that rank pari passu in right of security with the Liens thereon securing the Secured Obligations, such Liens will be subject to the First Lien Intercreditor Agreement and (y) with respect to Refinancing Term Loans secured by Liens on Collateral that rank junior in right of security to the Liens thereon securing the Secured Obligations, such Liens will be subject to a Junior Lien Intercreditor Agreement;
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(vii)there shall be no obligor in respect of such Refinancing Term Loans that is not a Loan Party;
(viii)such Refinancing Term Loans shall not be secured by any assets not securing the Obligations;
(ix)so long as any Obligations under the Tranche B-2 Term Loans or the Tranche B-3 Term Loans are outstanding, such Refinancing Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) with the Tranche B-2 Term Loans and the Tranche B-3 Term Loans with respect to any mandatory or voluntary prepayments;
(x)such Refinancing Term Loans may not be incurred for the purpose of influencing the voting threshold hereunder;
(xi)the proceeds of such Refinancing Term Loans shall be solely new money financing, which, for the avoidance of doubt, shall not include, in whole or in part, any exchange of other Indebtedness, and the proceeds of such Refinancing Term Loans shall be applied to all Lenders under the applicable refinanced facility on a pro rata basis; and
(xii)solely with respect to Refinancing Term Loans that are secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the MFN Protection shall apply.
(f)The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 10.4 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Incremental Assumption Agreement governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrowers.
(g)Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities providing for revolving commitments (“Replacement Revolving Facilities” and the commitments thereunder, “Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that: (i) before and after giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 3.2 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date; (iii) no Replacement Revolving Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Initial Revolving Commitment Termination Date in effect at the time of incurrence for the Revolving Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Revolving Loans being so refinanced (except to the extent such covenants and other terms apply solely to any period after the latest Initial Revolving Commitment Termination Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent), as determined by the
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Borrower in good faith; (v) there shall be no obligor in respect of such Replacement Revolving Facility that is not a Loan Party; (vi) such Replacement Revolving Facility shall not be secured by any assets not securing the Obligations; (vii) such Replacement Revolving Facility may not be incurred for the primary purpose of influencing the votes with respect to an amendment, waiver or other modification under this Agreement or affecting an Exit Consent; (viii) such Replacement Revolving Facility shall reduce the commitments of all Lenders under the applicable refinanced facility on a pro rata basis; and (ix) solely with respect to any Replacement Revolving Facility that is secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the MFN Protection shall apply. In addition, the Borrower may establish Replacement Revolving Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof (it being understood that such Replacement Revolving Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 3.2 shall be satisfied, (ii) the remaining life to termination of such Replacement Revolving Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Commitments shall be no earlier than the Term Loan Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Secured Obligations, such Liens will be subject to a Junior Lien Intercreditor Agreement, (v) there shall be no obligor in respect of such Replacement Revolving Facility that is not a Loan Party, (vi) solely with respect to any Replacement Revolving Facility that is secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the MFN Protection shall apply; and (vii) so long as any Obligations under the Tranche B-2 Term Loans or the Tranche B-3 Term Loans are outstanding, such Replacement Revolving Facility may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) with the Tranche B-2 Term Loans and the Tranche B-3 Term Loans with respect to any voluntary prepayments. Solely to the extent that an Issuing Bank is not a replacement issuing bank under a Replacement Revolving Facility; it is understood and agreed that such Issuing Bank shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank. The Borrower agrees to reimburse each Issuing Bank in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(h)The Borrower may approach any Lender or any other person that would be a permitted Assignee of a Revolving Commitment pursuant to Section 10.4 to provide all or a portion of the Replacement Revolving Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Commitment. Any Replacement Revolving Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided that any Replacement Revolving Commitments may, to the extent provided in the applicable Incremental Amendment, be designated as an increase in any previously established Class of Revolving Commitments.
(i)On any Replacement Revolving Facility Effective Date, subject to the satisfaction of the foregoing terms and conditions, each of the Lenders with Replacement Revolving Commitments of such Class shall purchase from each of the other Lenders with Replacement Revolving Commitments of such Class, at the principal amount thereof, such interests in the Replacement Revolving Loans and participations in Letters of Credit under such Replacement Revolving Commitments of such Class then outstanding on such Replacement Revolving Facility Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Replacement Revolving Loans and participations of such Replacement Revolving Commitments of such Class will be held by the Lenders thereunder ratably in accordance with their Replacement Revolving Commitments.
Section 2.25. Mitigation of Obligations. If any Lender requests compensation under Section 2.18, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable under Section 2.18 or Section 2.20, as the case may be, in
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the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such designation or assignment, promptly upon such Lender’s provision to the Borrower of reasonable documentation of such costs and expenses.
Section 2.26. Replacement of Lenders. If (a) any Lender requests compensation under Section 2.18, (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, (c) any Lender is a Defaulting Lender, (d) in connection with any proposed amendment, waiver, or consent, the consent of all of the Lenders, or all of the Lenders directly affected thereby, is required pursuant to Section 10.2, and any such Lender refuses to consent to such amendment, waiver or consent as to which the Required Lenders have consented, (e) in connection with any proposed amendment, waiver, or consent, the consent of all of the Initial Revolving Credit Lenders, or all of the Initial Revolving Credit Lenders directly affected thereby, is required pursuant to Section 10.2, and any such Initial Revolving Credit Lender refuses to consent to such amendment, waiver or consent as to which the Majority Initial Revolving Credit Lenders have consented, (f) in connection with any proposed amendment, waiver, or consent, the consent of all of the Non-Extended Revolving Credit Lenders, or all of the Non-Extended Revolving Credit Lenders directly affected thereby, is required pursuant to Section 10.2, and any such Non-Extended Revolving Credit Lender refuses to consent to such amendment, waiver or consent as to which the Non-Extended Initial Revolving Credit Lenders have consented or (g) in connection with any proposed amendment, waiver, or consent, the consent of all of the Term Loan Lenders, or all of the Term Loan Lenders directly affected thereby, is required pursuant to Section 10.2, and any such Term Loan Lender refuses to consent to such amendment, waiver or consent as to which the Majority Tranche B-2 Term Loan Lenders or Majority Tranche B-3 Term Loan Lenders, as applicable, have consented, then, in each case, the Borrower may, at its sole expense and effort (but without prejudice to any rights or remedies the Borrower may have against such Defaulting Lender), upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 10.4(b)) all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender but excluding any Defaulting Lender); provided, that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, (ii) prior to, or contemporaneous with, the replacement of such Lender, such Lender shall have received payment of an amount equal to the outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees, the Prepayment Premiums (if any) and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in the case of all other amounts), (iii) in the case of a claim for compensation under Section 2.18 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments, (iv) in the case of clause (d) above, the assignee Lender shall have agreed to provide its consent to the requested amendment, waiver or consent, and (v) other than as expressly provided in Section 10.4(l), no Initial Revolving Credit Lender shall be replaced pursuant to Section 2.26(d) or Section 2.26(e) unless the Majority Initial Revolving Credit Lenders have consented to such requested amendment, waiver or consent, to the extent the Majority Initial Revolving Credit Lenders’ consent is required to effectuate such amendment, waiver or consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Section 2.27. Application of Payments.
(a)Payments Prior to Event of Default. Prior to the occurrence and continuance of an Event of Default and subject to the First Lien Intercreditor Agreement, all amounts received by the Administrative Agent from the Borrower or any other Loan Party (other than payments specifically earmarked or required by the terms of this Agreement for application to certain principal, interest, fees or expenses hereunder or payments made pursuant to Section 2.12 (which shall be applied as earmarked or required, or, with respect to payments under Section 2.12, as set forth in Section 2.12)), shall be distributed by the Administrative Agent in the following order of priority:
FIRST, pro rata, to the payment of out-of-pocket costs, indemnities and expenses (including reasonable attorneys’ fees) of the Administrative Agent incurred by the Administrative Agent in connection with the enforcement of the rights of the Administrative Agent, the Issuing Banks and the Lenders under the Loan Documents;
SECOND, pro rata, to the payment of any fees then due and payable to the Administrative Agent, the Issuing Banks or the Swingline Lender hereunder or under any other Loan Documents;
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THIRD, pro rata, to the payment of all Obligations consisting of accrued fees, interest and premiums (including the Prepayment Premiums) then due and payable to the Lenders hereunder;
FOURTH, pro rata, to the payment of principal then due and payable on the Loans;
FIFTH, to the payment of any obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements; and
SIXTH, to the payment of all other Obligations not otherwise referred to in this Section 2.27(a) then due and payable.
Subject to items “FIRST” through “SIXTH” preceding, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations.
(b)Payments Subsequent to Event of Default. Notwithstanding anything in this Agreement or any other Loan Document which may be construed to the contrary, subsequent to the occurrence and during the continuance of an Event of Default, all payments and prepayments with respect to the Secured Obligations and all net proceeds from enforcement of the Secured Obligations (including realization on Collateral or otherwise), regardless of whether allowed or allowable in a bankruptcy, insolvency, reorganization or like proceeding, shall be distributed in the following order of priority (subject, as applicable, to the First Lien Intercreditor Agreement and Section 2.21):
FIRST, pro rata, to the payment of out-of-pocket costs, indemnities and expenses (including reasonable attorneys’ fees) of the Administrative Agent incurred in connection with the enforcement of the rights of the Administrative Agent, the Issuing Banks and the Lenders under the Loan Documents (including any costs incurred in connection with the sale or disposition of any Collateral);
SECOND, pro rata, to payment of any fees owed to the Administrative Agent, the Issuing Banks or the Swingline Lender hereunder or under any other Loan Document;
THIRD, pro rata, to the payment of out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Lenders incurred in connection with the enforcement of their respective rights under the Loan Documents;
FOURTH, pro rata, to the payment of all obligations consisting of accrued fees, interest and premiums (including the Prepayment Premiums) payable to the Lenders hereunder;
FIFTH, on a pro rata basis among the Secured Parties, to (i) the payment of principal on the Loans then outstanding, (ii) the Letter of Credit Reserve Account to the extent of one hundred five percent (105%) of any LC Exposure then outstanding and (iii) to the payment of any obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements;
SIXTH, to any other Secured Obligations not otherwise referred to in this Section 2.27(b); and
SEVENTH, upon satisfaction in full of all Secured Obligations, to the Borrower or as otherwise required by law.
Subject to items “FIRST” through “SEVENTH” preceding, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.
Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the
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preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
Section 2.28. Extensions of Revolving Commitments and Term Loans.
(a)Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Term Loan Lenders of any tranche with a like maturity date or all Revolving Credit Lenders having Revolving Commitments of any tranche with a like commitment termination date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such respective Term Loans or amounts of Revolving Commitments with a like maturity, as the case may be) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date and/or commitment termination date of each such Lender’s Term Loans and/or Revolving Commitments of such tranche, and, subject to the terms hereof, otherwise modify the terms of such Term Loans and/or Revolving Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate and/or fees payable in respect of such Term Loans and/or Revolving Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”; and each group of Term Loans or Revolving Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Commitments (in each case not so extended), being a separate “tranche”), so long as the following terms are satisfied:
(i)no Default or Event of Default shall have occurred and be continuing as of the date the Extension Offer is delivered to the Lenders;
(ii)except as to interest rates, fees and final commitment termination date (which shall be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the Extending Revolving Credit Lenders), the Revolving Commitment of any Revolving Credit Lender that agrees to an Extension with respect to such Revolving Commitment (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Commitment” and the Loans thereunder, “Extended Revolving Loans”) and the related outstandings shall be a Revolving Commitment (or related outstandings, as the case may be) with the same terms (or terms not less favorable to existing Revolving Credit Lenders) as the original Revolving Commitments (and related outstandings); provided, that (1) the borrowing and payments (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings), (B) repayments required upon the commitment termination date of the non-extending tranche of Revolving Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments) of Extended Revolving Loans with respect to Extended Revolving Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of Sections 2.22(j) and 2.5(f) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after an Initial Revolving Commitment Termination Date when there exist Extended Revolving Commitments with a later Initial Revolving Commitment Termination Date, all Swingline Loans and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Commitments in accordance with their applicable Pro Rata Shares (and except as provided in Sections 2.22(j) and 2.5(f), without giving effect to changes thereto on an earlier Initial Revolving Commitment Termination Date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) assignments and participations of Extended Revolving Commitments and related Extended Revolving Loans shall be governed by the same assignment and participation provisions applicable to the other Revolving Commitments and Revolving Loans and (4) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments and any existing Revolving Commitments) which have more than two (2) different maturity dates;
(iii)except as to interest rates, fees (including, without limitation, upfront fees), funding discounts, prepayment premium, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the Extending Term Loan Lenders), the Term Loans of any Term Loan Lender that agrees to an Extension with respect to such Term Loans owed to it (an “Extending Term Loan Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms (or terms not less favorable to existing Term
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Loan Lenders or terms that are applicable only to periods after the then applicable maturity date with respect to such tranche of Term Loans) as the tranche of Term Loans subject to such Extension Offer;
(iv)the final maturity date of any Extended Term Loans shall be no earlier than the latest maturity date of the Term Loans extended thereby;
(v)the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby;
(vi)any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) with non-extending tranches of Term Loans in any voluntary or mandatory prepayments in respect of the applicable Facility, in each case as specified in the respective Extension Offer;
(vii)if the aggregate principal amount of Term Loans (calculated on the outstanding principal amount thereof) or Revolving Commitments in respect of which Term Loan Lenders or Revolving Credit Lenders respectively shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Commitments offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Loans of such Term Loan Lenders or Revolving Credit Lenders respectively shall be extended ratably up to such maximum amount based on the respective principal or commitment amounts with respect to which such Term Loan Lenders or Revolving Credit Lenders, as the case may be, have accepted such Extension Offer; and
(viii)any applicable Minimum Extension Condition shall have been satisfied unless waived by the Borrower.
With respect to all Extensions consummated by the Borrower pursuant to this Section 2.28, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.11 or 2.12, (ii) the amortization schedule (in so far as such schedule effects payments due to Lenders participating in the relevant Facility) set forth in Section 2.9 shall be adjusted to give effect to the Extension of the relevant Facility, and (iii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided, that the Borrower may at its election specify as a condition to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Commitments (as applicable) of any or all applicable tranches be tendered (a “Minimum Extension Condition”). The Lenders hereby consent to the transactions contemplated by this Section 2.28 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit or conflict with any such Extension or any other transaction contemplated by this Section 2.28.
No consent of any Lender shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Commitments (or a portion thereof). All Extended Term Loans, Extended Revolving Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents and secured by the Collateral on a pari passu basis with all other applicable Secured Obligations, and shall, without limiting the foregoing, benefit equally and ratably with the other Secured Obligations from the guarantees and security interests created by the Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to (and the Administrative Agent shall) enter into amendments to this Agreement and the other Loan Documents (including, without limitation, modifications to provisions regarding pro rata payments or sharing of payments (provided, in no event shall any such modification entered into by the Administrative Agent pursuant to the foregoing authorization cause or enable any such Extension to rank senior to, or receive or share in payments on a more favorable basis than pro rata with respect to, the other Loans and Commitments hereunder except for such differences in rank or right to receive or share in payments among the existing Loans and Commitments that are already contained or set forth in the Loan Documents, if any, prior to the effectiveness of such Extension)) with the Borrower (on behalf of all Loan Parties) as may be necessary in order to establish new tranches or subtranches in respect of Revolving Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-
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tranches, in each case on terms consistent with this subsection. In addition, if so provided in such amendment and with the consent of the Issuing Bank, participations in Letters of Credit expiring on or after the applicable commitment termination date shall be re-allocated from Lenders holding Initial Revolving Commitments to Lenders holding Extended Revolving Commitments in accordance with the terms of such amendment; provided, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Initial Revolving Commitments, be deemed to be participation interests in respect of such Initial Revolving Commitments and the terms of such participation interests shall be adjusted accordingly. The Administrative Agent shall promptly notify each Lender of the effectiveness of each such amendment. In connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof (which such notice the Administrative Agent shall promptly forward to the Lenders; provided, the Administrative Agent’s delivery to the Lenders thereof shall not constitute a condition to or requirement for the effectiveness of any such Extension or be included in the determination of such five (5) Business Day period), and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent and the Borrower, in each case acting reasonably to accomplish the purposes of this Section 2.28. This Section 2.28 shall supersede any other provisions of Section 10.2 or Section 2.21 to the contrary.
Section 2.29. Reverse Dutch Auction Prepayments.
(a)Notwithstanding anything to the contrary set forth in this Agreement (including Sections 2.21 and 10.7) or any other Loan Document, the Borrower shall have the right at any time and from time to time to prepay Term Loans to the Term Loan Lenders at a discount to the par value of such Term Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.29; provided that (i) on the date of the Discounted Prepayment Option Notice (as defined below) and after giving effect to the Discounted Voluntary Prepayment, (A) the aggregate amount of Revolving Loans and Swingline Loans outstanding shall not be greater than $50,000,000 and (B) no Discounted Voluntary Prepayment shall be made from the proceeds of any Revolving Loan or Swingline Loan, (ii) any Discounted Voluntary Prepayment shall be offered to all Term Loan Lenders of a particular tranche on a pro rata basis and (iii) the Borrower shall deliver to the Administrative Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the Borrower (A) stating that no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment, (B) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.29 has been satisfied and (C) specifying the aggregate principal amount of Term Loans to be prepaid pursuant to such Discounted Voluntary Prepayment.
(b)To the extent the Borrower seeks to make a Discounted Voluntary Prepayment, the Borrower will provide written notice to the Administrative Agent substantially in the form of Exhibit G hereto (each, a “Discounted Prepayment Option Notice”) that the Borrower desires to prepay Term Loans in an aggregate principal amount specified therein by the Borrower (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Prepayment Amount of any Term Loans shall not be less than $1,000,000 (unless otherwise agreed by the Administrative Agent). The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (i) the Proposed Discounted Prepayment Amount for Term Loans to be prepaid, (ii) a discount range (which may be a single percentage) selected by the Borrower with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Term Loans to be prepaid (the “Discount Range”), and (iii) the date by which Term Loan Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least five (5) Business Days following the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).
(c)Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent shall promptly notify each applicable Term Loan Lender thereof. On or prior to the Acceptance Date, each such Term Loan Lender may specify by written notice substantially in the form of Exhibit H hereto (each, a “Lender Participation Notice”) to the Administrative Agent (i) a maximum discount to par (the “Acceptable Discount”) within the Discount Range (for example, a Term Loan Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the Term Loans to be prepaid) and (ii) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loans to be prepaid held by such Term Loan Lender with respect to which such Term Loan Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount (“Offered Loans”). Based on the Acceptable Discounts and principal amounts of the Term Loans to be
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prepaid specified by the Term Loan Lenders in the applicable Lender Participation Notice, the Administrative Agent and the Borrower shall mutually determine the applicable discount for such Term Loans to be prepaid (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Borrower if the Borrower has selected a single percentage pursuant to Section 2.29(b) for the Discounted Voluntary Prepayment or (B) otherwise, the highest Acceptable Discount at which the Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Term Loan Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Term Loan Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Term Loan Lender with outstanding Term Loans to be prepaid whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Term Loans at any discount to their par value within the Applicable Discount.
(d)The Borrower shall make a Discounted Voluntary Prepayment by prepaying those Term Loans to be prepaid (or the respective portions thereof) offered by the Term Loan Lenders (“Qualifying Lenders”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount; provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay all Qualifying Loans.
(e)Each Discounted Voluntary Prepayment shall be made within five (5) Business Days of the Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (other than as set forth in Section 2.14(d), Section 2.14(e) and Section 2.14(f), but not subject to Section 2.19), upon irrevocable notice substantially in the form of Exhibit I hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 1:00 p.m. New York City Time, three (3) Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall (i) specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent and (ii) state that no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment. Upon receipt of any Discounted Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Term Loan Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Term Loan Lenders, subject to the Applicable Discount on the applicable Term Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of a Term Loan shall be applied ratably to reduce the remaining installments of such Term Loans.
(f)To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section 2.29(c) above) established by the Administrative Agent and the Borrower.
(g)Prior to the delivery of a Discounted Voluntary Prepayment Notice, (i) upon written notice to the Administrative Agent, the Borrower may withdraw or modify its offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice and (ii) no Term Loan Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment pursuant to any Lender Participation Notice unless the terms of such proposed Discounted Voluntary Prepayment have been modified by the Borrower after the date of such Lender Participation Notice. Within one (1) Business Day of delivery of a Discounted Voluntary Prepayment Notice, a Term Loan Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment solely if the
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Borrower is unable to provide a customary representation and warranty in the Discounted Voluntary Prepayment Notice that there is no material non-public information with respect to the Borrower and its Subsidiaries.
(h)Nothing in this Section 2.29 shall require the Borrower to undertake any Discounted Voluntary Prepayment nor any Lender to participate in any Discounted Voluntary Prepayment.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1. Conditions To Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2).
(a)The Administrative Agent, its Affiliates and the Lenders shall have received payment of all fees (including fees payable on the Closing Date pursuant to the Backstop Commitment Letter and the Steerco Commitment Premium), expenses and other amounts required to be paid pursuant to the Revolving Commitment Letter, the Backstop Commitment Letter and the Transaction Support Agreement, in each case, to the extent due and payable on or prior to the Closing Date, and reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent, including any local counsel, and each of (i)(x) Davis Polk & Wardwell LLP and (ii) Dentons US LLP, in connection with its representation of the Fronting Lenders) and (y) Moelis & Company LLC, in connection with their representation of Ad Hoc Group (as defined in the Transaction Support Agreement) invoiced a reasonable period of time prior to the Closing Date and required to be reimbursed or paid by the Borrower hereunder on or prior to the Closing Date, under any other Loan Document.
(b)The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Required Lenders:
(i)a counterpart of this Agreement signed by or on behalf of the Borrower and the Lenders or written evidence satisfactory to the Administrative Agent (which may include facsimile or pdf transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii)duly executed Notes payable to each requesting Lender;
(iii)the Security Agreement duly executed by the Loan Parties;
(iv)the Subsidiary Guaranty Agreement duly executed by the Borrower and the Subsidiary Guarantors;
(v)duly executed Closing Date ICA Amendment;
(vi)subject to Section 5.14, duly executed Control Agreements required by Section 5.11;
(vii)intellectual property security agreements duly executed by the Administrative Agent and each Loan Party that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(viii)(A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable state level UCC searches, tax, and judgment search reports in all necessary or appropriate jurisdictions and under all legal names of the Loan Parties, as requested by the Administrative Agent and in substance and form reasonably
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satisfactory to the Administrative Agent indicating that there are no prior Liens on any of the Collateral other than Liens permitted pursuant to Section 7.2 and Liens to be released on the Closing Date and (C) a Perfection Certificate duly completed on a pro forma basis after giving effect to the Transactions and executed by the Borrower;
(ix) [reserved];
(x)a duly executed Global Intercompany Note on behalf of the Borrower and each of its Subsidiaries (other than any Securitization Subsidiary);
(xi)a certificate of the Secretary or any other Responsible Officer of each Loan Party, attaching and certifying copies of its Organizational Documents, and of the resolutions of its board of directors or similar governing body authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of each Loan Party executing the Loan Documents to which it is a party;
(xii)a certificate of good standing for each Loan Party from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party (to the extent such concept exists in such jurisdiction);
(xiii)a favorable written opinion of Simpson Thacher & Bartlett LLP, counsel to the Loan Parties, together with local counsel opinions reasonably requested by the Administrative Agent, in each case addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(xiv)a certificate in the form of Exhibit 3.1(b)(xii), dated the Closing Date and signed by a Responsible Officer of the Borrower, certifying that after giving effect to the Transactions (1) no Default or Event of Default exists or would result from the funding (or deemed funding) of the Term Loans or from the application of the proceeds therefrom on the Closing Date and from the establishment of the Initial Revolving Facility and the incurrence of the Initial Revolving Commitments on the Closing Date, (2) all representations and warranties of each Loan Party set forth in the Credit Agreement and the Loan Documents are true and correct in all material respects on and as of the Closing Date (except in the case of any representation and warranty that expressly relates to a given date or period, such representation and warranty are true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (3) since December 31, 2024, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(xv)a solvency certificate duly executed by the chief financial officer of the Borrower, addressed to the Administrative Agent for the benefit of the Lenders and dated the Closing Date in substantially the form of Exhibit 3.1(b)(xx), giving pro forma effect to the Transactions to be effected on the Closing Date; and
(xvi)a Notice of Borrowing, duly executed by the Borrower.
(c)The Administrative Agent shall have received, (i) at least three (3) Business Days prior to the Closing Date (if requested in writing of the Borrower at least seven (7) Business Days prior to the Closing Date), all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including without limitation, the Patriot Act) and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and is not excluded from the definition of “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Beneficial Ownership Certification.
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(d)The Borrower and the other Loan Parties shall have received all approvals, consents, licenses and permits required in connection with the Transactions, which approvals, consents, licenses and permits remain in full force and effect.
(e)Lenders constituting the Requisite B-3 Majority (as defined in the Transaction Support Agreement) shall have participated in the Transactions.
(f)The Transaction Support Agreement shall not have been terminated and shall be in full force and effect with no notice of termination, breach, default, event of default, or similar notice having been delivered by or to any signatory thereto (to the extent such breach, default, event of default, or similar notice has not been cured or waived in accordance with the terms of the Transaction Support Agreement).
(g)Substantially concurrently with the Closing Date, the Existing Credit Agreement and the obligations thereunder and Liens and guarantees in connection therewith shall have been satisfied and terminated in full pursuant to customary payoff documentation reasonably satisfactory to the Administrative Agent.
(h)Substantially concurrently with the Closing Date, the A/R Securitization Facility Documents shall have become effective on the terms and conditions set forth in the Securitization Commitment Letters (as defined in the Transaction Support Agreement) and the Transaction Support Agreement.
(i)The Closing Date Refinancing Transactions and other Transactions shall have occurred substantially concurrently on the Closing Date.
For purposes of determining compliance with the conditions specified in this Section 3.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto.
Section 3.2. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to the satisfaction of the following conditions (provided that the conditions set forth in clauses (b), (c), (d) and (f) below shall not apply in the case of a Borrowing consisting solely of a continuation or conversion of any Loan or to any amendment, renewal or extension of any Letter of Credit that does not increase the face amount thereof):
(a)at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b)at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), in each case before and after giving effect thereto;
(c)with respect to any Borrowing of a Revolving Loan or Swingline Loan or the issuance of any Letter of Credit (not including Letters of Credit which, upon issuance, are Cash Collateralized by the Borrower to at least the Minimum Collateral Amount) after the Closing Date, the Borrower shall be in compliance with the Financial Covenants on a Pro Forma Basis (giving effect to such Borrowing or issuance and regardless of whether the Borrower was required to be in compliance with such Financial Covenant at such time) for the applicable Test Period.
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(d)since the date of the financial statements of the Borrower described in Section 4.5, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(e)the Borrower shall have delivered the required Notice of Borrowing, if applicable; and
(f)the Administrative Agent shall have received such other documents, certificates or information as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent.
Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal opinions and other documents and papers referred to in this Article III, unless otherwise specified, shall be delivered to the Administrative Agent for the account of each of the Lenders and, except for the Notes, in sufficient counterparts or copies for each of the Lenders and shall be in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants, both immediately before and after giving effect to the Transactions, to the Administrative Agent and each Lender as follows (for purposes of clarity, the representations and warranties to be made on the Closing Date shall be made immediately after giving effect to the Transactions on a pro forma basis):
Section 4.1. Existence; Power. Each Loan Party (i) is duly organized, validly existing and in good standing as a corporation, partnership or limited liability company under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The execution, delivery and performance by each Loan Party of the Loan Documents and other Transaction Documents to which it is a party are within such Loan Party’s organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member, action. This Agreement has been duly executed and delivered by the Borrower, and constitutes, and each other Transaction Document to which any Loan Party is a party, when executed and delivered by such Loan Party, will constitute, valid and binding obligations of the Borrower or such Loan Party, as the case may be, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
Section 4.3. Capital Stock and Related Matters. As of the Closing Date, the authorized Equity Interests of the Borrower and each Subsidiary and the number of shares of such Equity Interests that are issued and outstanding are as set forth on Schedule 4.3. All of the shares of such Equity Interests that are issued and outstanding have been duly authorized and validly issued and are fully paid and non-assessable. None of such Equity Interests have been issued in violation of the Securities Act, or the securities, “Blue Sky” or other applicable Laws of any applicable jurisdiction. As of the Closing Date, the Equity Interests of each Subsidiary of the Borrower are owned by the parties listed on Schedule 4.3 in the amounts set forth on such schedule and a description of the Equity Interests of each such party is listed on Schedule 4.3. Except as described on Schedule 4.3, neither the Borrower nor any Subsidiary has outstanding any stock or securities convertible into or exchangeable for any shares of its Equity Interests, nor are there any preemptive or similar rights to subscribe for or to purchase, or any other rights to subscribe for or to purchase, or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments, or claims of any character relating to, any Equity Interests or any stock or securities convertible into or exchangeable for any Equity Interests. Except as set forth on Schedule 4.3, neither the Borrower nor any Subsidiary is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity Interests or to register any shares of its Equity Interests, and there are no agreements restricting the transfer of any shares of the Borrower’s or such Subsidiary’s
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Equity Interests or restricting the ability of any Subsidiary of the Borrower from making distributions, dividends or other Restricted Payments to another Subsidiary or the Borrower.
Section 4.4. Governmental Approvals; No Conflicts. The execution, delivery and performance by the Borrower of this Agreement and by each Loan Party of the other Transaction Documents, or consummation of the Transactions (a) do not require any consent, waiver or approval of, notification to, registration or filing with, or any other action by, any Governmental Authority, except (i) those as have been obtained or made and are in full force and effect, and except for filings required by applicable securities laws and regulations, which filings have been made or will be made on or prior to the date on which such filings are required to be made, and (ii) the filing with the FCC of certain of the Loan Documents as required by the Communications Laws, (b) do not require any consent, waiver or approval of, notification to, registration or filing with, or any other action by, any Person other than those described in clause (a) immediately above, except those listed on Schedule 4.4 hereto or those that have been obtained or made and are in full force and effect, (c) will not violate any Requirements of Law applicable to the Borrower or any Subsidiary or any judgment, order or ruling of any Governmental Authority, (d) will not violate or result in a default under any indenture, material agreement or other material instrument binding on the Borrower or any Subsidiary or any of its assets or give rise to a right thereunder to require any payment to be made by the Borrower or any Subsidiary and (e) will not result in the creation or imposition of any Lien on any asset of the Borrower or any Subsidiary, except Liens created under the Loan Documents. The failure by the Borrower or its Subsidiaries, as applicable, to obtain the consent or approval or otherwise to satisfy the requirements described in clause (b) immediately above with respect to the items disclosed on Schedule 4.4 could not reasonably be expected to have, individually or collectively, a Material Adverse Effect.
Section 4.5. Financial Statements.
(a)The Borrower has furnished to each Lender the audited consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2023 and December 31, 2024 and the related consolidated statements of operations, shareholders’ equity and cash flows for the Fiscal Year then ended, accompanied by the opinion of Deloitte & Touche LLP. Such financial statements fairly present the consolidated financial condition of the Borrower and its Subsidiaries as of such dates and the consolidated results of operations and cash flows for such periods in conformity with GAAP consistently applied. Since December 31, 2024, there have been no changes with respect to the Borrower and its Subsidiaries which have had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.6. Liabilities, Litigation and Environmental Matters.
(a)As of the Closing Date, except for liabilities incurred in the normal course of business and liabilities incurred as a result of consummation of the Transactions, neither the Borrower nor any Subsidiary has any material (individually or in the aggregate) liabilities, direct or contingent (including, without limitation, Indebtedness, Guarantees, contingent liabilities and liabilities for taxes, long-term leases and unusual forward or long-term commitments), except as disclosed or referred to in the financial statements referred to in Section 4.5 or with respect to the Obligations. Except as described on Schedule 4.6(a), there is no litigation, legal or administrative proceeding, investigation, or other action of any nature pending or, to the knowledge of the Borrower, threatened against or directly affecting the Borrower or any Subsidiary or any of their respective properties which could reasonably be expected to have a Material Adverse Effect. No litigation, investigation or proceeding by or before any arbitrators or Governmental Authorities is pending against or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary which in any manner draws into question the validity or enforceability of this Agreement or any other Transaction Document.
(b)Except for the matters set forth on Schedule 4.6(b), neither the Borrower nor any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability, except, in the case of any of the foregoing, where such failure or actual or possible liability, either singly or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Compliance with Laws and Agreements. The Borrower and each Subsidiary is in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or other instruments binding upon them or their properties, except where non-
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compliance, either singly or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures reasonably designed to promote and achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents which are acting or benefitting in any capacity in connection with this Agreement, with Anti-Corruption Laws and applicable Sanctions.
Section 4.8. Material Contracts. Schedule 4.8 contains a complete list, as of the Closing Date, of each Material Contract, true, correct and complete copies of which have been delivered to the Administrative Agent. Neither the Borrower nor any Subsidiary is in default under or with respect to any Material Contract to which it is a party or by which it or any of its properties are bound, which default has had, or could reasonably be expected to have, as Material Adverse Effect. Except as set forth on Schedule 4.8, none of the Material Contracts set forth on Schedule 4.8 requires the consent of any Person to the granting of a Lien in favor of the Administrative Agent on the rights of the Borrower or any Subsidiary thereunder.
Section 4.9. Investment Company Act, Etc. Neither the Borrower nor any Subsidiary is (a) an “investment company” or is “controlled” by an “investment company,” as such terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as amended or (b) otherwise subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval or consent from or registration or filing with, any Governmental Authority in connection therewith.
Section 4.10. Taxes. The Borrower and its Subsidiaries have timely filed or caused to be filed all Tax returns that are required to be filed by them, and have paid all Taxes shown to be due and payable on such returns or on any assessments made against them or their property and all other Taxes imposed on them or any of their property by any Governmental Authority, except, in each case, where the same are currently being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as the case may be, has set aside on its books adequate reserves in accordance with GAAP or where the same could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of unpaid Taxes are adequate and in accordance with GAAP, and no Tax liabilities that could be materially in excess of the amount so provided are anticipated.
Section 4.11. Margin Regulations. None of the proceeds of any of the Loans or Letters of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of such terms under Regulation U or for any purpose that violates the provisions of Regulation T, Regulation U or Regulation X. Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.”
Section 4.12. ERISA. Except as set forth on Schedule 4.12, no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. Except as would not reasonably be expected to result in a Material Adverse Effect, the present value of all accumulated benefit obligations under all Plans taken in the aggregate (based on the assumptions used for purposes of FASB ASC 715) did not, as of the date of the most recent actuarial valuations conducted prior to the Closing Date reflecting such amounts, exceed the fair market value of the assets of such Plans.
Section 4.13. Ownership of Property; Intellectual Property.
(a)The Borrower and each Subsidiary has good title to, or valid leasehold interests in, all of its real and tangible personal property material to the operation of its business, including all such properties reflected in the most recent audited consolidated balance sheet of the Borrower referred to in Section 4.5 or purported to have been acquired by the Borrower or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are material to the business or operations of the Borrower and each Subsidiary are valid and subsisting and are in full force in all material respects.
(b)Except as set forth on Schedule 4.13(b), the Borrower and each Subsidiary owns, or is licensed, or otherwise has the right, to use, all Intellectual Property that is material to its business, and the use of such Intellectual Property by the Borrower or any Subsidiary does not, to the best knowledge of the Borrower, infringe on or violate the Intellectual Property rights of any other Person, or constitute a misappropriation of any Intellectual
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Property of any other Person, except where the failure to have such rights, or any such infringement, violation or misappropriation, could not reasonably be expected to result in a Material Adverse Effect. There exist no restrictions on the disclosure, use, license or transfer of the Intellectual Property owned by the Borrower and its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect. None of the Intellectual Property owned by the Borrower and its Subsidiaries has been adjudged invalid or unenforceable in whole or part and, to the best knowledge of the Borrower, all such Intellectual Property is valid and enforceable, except where such adjudication of invalidity or unenforceability or the failure to be valid and/or enforceable could not reasonably be expected to result in a Material Adverse Effect. To the best knowledge of the Borrower, no third Person is infringing, violating or misappropriating any Intellectual Property owned or exclusively licensed by the Borrower or its Subsidiaries in a manner that could reasonably be expected to result in a Material Adverse Effect.
(c)Except as set forth on Schedule 4.13(c), with respect to each Website, the Borrower and its Subsidiaries have taken commercially reasonable steps to: (i) maintain commercially reasonable computer resources intended to help ensure that no service outages will occur due to insufficient data-storage, memory, server response levels or other related reasons (except outages which are at, or remediated in accordance with, industry acceptable levels); (ii) protect the integrity and security of such Websites against any unauthorized use, access, interruption, modification or corruption, as the case may be; (iii) obtain consent for its acquisition, storage, transfer and use of personal information as required by applicable Requirements of Law; and (iv) put in place policies and procedures designed to limit the liability of the Borrower and its Subsidiaries as a host of user-generated content, in each case (i), (ii), (iii) and (iv), except where any failure of any of the foregoing could not reasonably be expected to result in a Material Adverse Effect. All proprietary Intellectual Property produced or otherwise exclusively generated by or for the Borrower and its Subsidiaries, whether by assignment, work made for hire or otherwise, including any content posted by or for the Borrower and its Subsidiaries on the Websites and which Material Intellectual Property is produced solely by or for the benefit of the Borrower and its Subsidiaries (in each case, excluding any user-generated or user-posted content), is owned exclusively or validly licensed by the Borrower or its Subsidiaries, except where any failure of any of the foregoing could not reasonably be expected to result in a Material Adverse Effect. The Borrower has taken reasonable steps to ensure that all Persons (including current and former employees of the Borrower and its Subsidiaries and any independent contractors) who create or contribute to the development of proprietary Intellectual Property owned or purported to be owned by the Borrower and its Subsidiaries in the conduct of its respective businesses have assigned in writing to the Borrower or such Subsidiaries all of their rights therein that did not initially vest with the Borrower or its Subsidiaries by operation of law, except where any failure of any of the foregoing could not reasonably be expected to result in a Material Adverse Effect.
(d)Except as set forth on Schedule 4.13(d), the material properties of the Borrower and each Subsidiary are insured with financially sound and reputable insurance companies which are not Affiliates of the Borrower, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or any applicable Subsidiary operates.
Section 4.14. Disclosure. The Borrower has duly filed all reports required to be filed with the Securities and Exchange Commission. None of the reports (including without limitation all reports that the Borrower is required to file with the Securities and Exchange Commission), financial statements, certificates or other information furnished by or on behalf of the Borrower or any other Loan Party to the Administrative Agent or any Lender in connection with the negotiation or syndication of this Agreement, any other Transaction Document delivered hereunder or thereunder (as modified or supplemented by any other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in light of the circumstances under which they were made, not misleading; provided, that with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
Section 4.15. Labor Relations. There are no strikes, lockouts or other labor disputes or grievances against the Borrower or any Subsidiary, or, to the Borrower’s knowledge, threatened against the Borrower or any of its Subsidiaries, and no unfair labor practice, charges or grievances are pending against the Borrower or any of its Subsidiaries, or to the Borrower’s knowledge, threatened against any of them before any Governmental Authority which, as to any of the foregoing, has had or could reasonably be expected to have a Material Adverse Effect. All payments due from the Borrower or any Subsidiary pursuant to the provisions of any collective bargaining agreement have been paid or accrued as a liability on the books of the Borrower or any such Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
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Section 4.16. Subsidiaries and Joint Ventures. As of the Closing Date, Schedule 4.16 sets forth, each Subsidiary and each joint venture of the Borrower and each Subsidiary, and, for each Person set forth thereon, a complete and accurate statement of (i) the percentage ownership of each such Person by the Borrower or any Subsidiary of the Borrower, (ii) the state or other jurisdiction of incorporation or formation, as appropriate, of each such Person, and the type of legal entity for each such Person, (iii) each state in which each such Person is qualified to do business and (iv) all of each such Person’s trade names, trade styles or doing business forms which such Person has used or under which such Person has transacted business during the five (5) year period immediately preceding the Closing Date. As of the Closing Date, neither the Borrower nor any Subsidiary is a partner or joint venturer in any partnership or joint venture other than as expressly set described on Schedule 4.16.
Section 4.17. Solvency. After giving effect to each Borrowing or issuance of Letters of Credit, the Borrower and its Subsidiaries, taken as a whole, will not be “insolvent” within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay their debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated.
Section 4.18. EEA Financial Institutions. Neither the Borrower nor any Subsidiary is an EEA Financial Institution.
Section 4.19. Patriot Act. Neither any Loan Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act or any enabling legislation or executive order relating thereto. Neither any Loan Party nor any or its Subsidiaries is in violation of (a) the Trading with the Enemy Act, (b) any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act.
Section 4.20. Anti-Corruption Laws and Sanctions.
(a)Neither any Loan Party nor any of its Subsidiaries and, any of their respective directors, officers, and, to the knowledge of senior management of the Borrower or such Subsidiaries, employees or agents acting or benefitting in any capacity in connection with this Agreement, (i) is a Person that is owned or controlled by a Sanctioned Person, (ii) is a Sanctioned Person or (iii) is located, organized or resident in a Sanctioned Country.
(b)Each of the Loan Parties and its Subsidiaries, and to the knowledge of the Loan Parties, each director, officer, employee and agent of the Loan Parties and each such Subsidiary, is in compliance with the Anti-Money Laundering Laws in all material respects.
(c)The Borrower and its Subsidiaries are in compliance with Anti-Corruption Laws and applicable Sanctions and have instituted and maintained policies and procedures designed to promote and achieve compliance with Anti-Corruption Laws and applicable Sanctions and, to the knowledge of the Borrower, its employee and agents, (each in their capacity as such) are in compliance with Anti-Corruption Laws. No Borrowing or Letter of Credit, use of proceeds thereof or other Transactions will violate Anti-Corruption Laws or applicable Sanctions.
Section 4.21. Security Interests. The security interests created by the Security Agreement and the other Security Documents in favor of the Administrative Agent for the benefit of the Secured Parties are legal, valid and enforceable security interests in all right, title and interest of the Loan Parties in the Collateral, and the Administrative Agent, for the benefit of the Secured Parties, has a fully perfected (upon the satisfaction of the applicable perfection requirements, and to the extent such security interests are required to be perfected under the terms of the Loan Documents) first lien on, and security interest in, all right, title and interest in all of the collateral described therein (subject only to Permitted Liens).
Section 4.22. Use of Proceeds. The proceeds of the Loans and Letters of Credit are intended to be and shall be used solely for the purposes set forth in and permitted by Section 5.9 and not prohibited by Section 7.13.
Section 4.23. Licenses; FCC.
(a)The Borrower and its Subsidiaries hold such validly issued Licenses as are necessary to operate the Stations as they are currently operated, and such Licenses are in full force and effect, are valid for the balance of
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the current license term and are unimpaired by any act or omission of the Borrower or its Subsidiaries, except, in each case, where the failure to do so could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the Stations, together with their Licenses granted or assigned to the Borrower or its Subsidiaries, are identified on Schedule 4.23, and each such License has the expiration date set forth on Schedule 4.23. As of the Closing Date, the are no conditions upon the Licenses except those conditions stated on the face thereof or conditions applicable to the stations of such class generally under the Communications Laws. Except as otherwise set forth on Schedules 4.23 and 4.23(b), each Station is being operated materially in accordance with the terms and conditions of the Licenses applicable to it and the Communications Laws.
(b)Except as otherwise set forth on Schedule 4.23(b) and excluding any customary applications filed with the FCC seeking the renewal of a License for so long as no Person has filed with the FCC a Petition to Deny such application, no proceedings are pending or, to the knowledge of the Borrower, are threatened, before the FCC that reasonably would be expected to result in the revocation, adverse modification, nonrenewal or suspension of the main station broadcast License for any full-power and full-service television broadcast Station of the Borrower or any Subsidiary, the issuance of any cease and desist order, or the imposition of any fines, forfeitures or other administrative actions by the FCC with respect to any Station, other than any proceedings which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(c)All reports, applications and other documents required to be filed by the Borrower and its Subsidiaries with the FCC with respect to the Stations have been timely filed, and all such reports, applications and documents are true, correct and complete in all respects, except where the failure to make such timely filing or any inaccuracy therein could not reasonably be expected to have a Material Adverse Effect, and except as otherwise set forth on Schedule 4.23(b), the Borrower has no knowledge of any matters which could reasonably be expected to result in the suspension, adverse modification, revocation of, or the refusal to renew, any License or the imposition on the Borrower or any Subsidiary of any fines or forfeitures by the FCC which could reasonably be expected to result in a Material Adverse Effect.
Section 4.24. Beneficial Ownership Certification. As of the Closing Date, the information included in the Beneficial Ownership Certification delivered to the Administrative Agent and each Lender on or prior to the Closing Date is true and correct in all respects.
Section 4.25. Outbound Investment Rules. As of the Closing Date, neither the Borrower nor any of its Subsidiaries is a “covered foreign person: as that term is used in the Outbound Investment Rules. As of the Closing Date, neither the Borrower nor any of its Subsidiaries engages, or has any intention to engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that would cause the Administrative Agent, any Lender or any Issuing Bank to be in violation of the Outbound Investment Rules or cause the Administrative Agent, any Lender or any Issuing Bank to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any Obligation remains unpaid or outstanding:
Section 5.1. Financial Statements and Other Information. The Borrower will (a) notify the Administrative Agent and each Lender that previously received a Beneficial Ownership Certification in connection with this Agreement of any change in the information provided in the Beneficial Ownership Certification of which any Loan Party is aware that would result in a change to the list of beneficial owners identified therein and (b) deliver to the Administrative Agent and each Lender:
(a)as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of operation, stockholders’ equity and cash flows
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(together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit (other than an explanatory paragraph or emphasis of matter paragraph as a result of a current maturity of any Indebtedness or any potential default of a financial covenant)) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with Public Company Accounting Oversight Board (U.S.) Standards;
(b)as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c)promptly upon the reasonable request of the Administrative Agent or any Lender, any information or documentation requested by it for purposes of complying with the Beneficial Ownership Regulation;
(d)concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the chief financial officer or treasurer of the Borrower, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the Financial Covenants (to the extent such Financial Covenant is then in effect), (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.5 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; provided, however, that no action shall be required by the Borrower under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Borrower or its Subsidiaries, including the presentation by the Borrower of its financial statements, (iv) setting forth as and at the end of such Fiscal Quarter or Fiscal Year, as the case may be, reasonably detailed calculations of the amount of the Available Amount and specifying any applicable utilizations of the Available Amount during such Fiscal Quarter or Fiscal Year, as applicable, (v) containing a list of each Subsidiary of the Borrower that identifies each Subsidiary as a Subsidiary and/or a Subsidiary that is not a Loan Party as of the date of the applicable Compliance Certificate or a confirmation that there has been no change in such information since the last such list provided pursuant to this clause (d) and (vi) containing a list as of the end of such Fiscal Quarter or Fiscal Year, as the case may be, of each Loan Party whose revenues and assets are included in the calculation of the Aggregate Subsidiary Threshold as of such date, together with calculations demonstrating the Aggregate Subsidiary Threshold and that no action is required to be taken by the Borrower in accordance with Section 5.12(b);
(e)concurrently with the delivery of the financial statements referred to in clause (a) above, a list of (i) all sales or other dispositions of assets made pursuant to Section 7.6(c), Section 7.6(g), Section 7.6(h) and Section 7.6(i) (designating, in the case of such clauses (c), (h) and (i), in such listing whether the Borrower is deeming any sale or disposition to be made under clause (c), (h) or (i) of Section 7.6) of this Agreement by the Borrower and its Subsidiaries during the Fiscal Year most recently ended, including a description of the type of replacement assets and amount and type of other proceeds, if any, received from such sales or other dispositions and (ii) all Persons that the Borrower is identifying to the Administrative Agent as Disqualified Institutions (the “DQ List”) (provided that such Persons shall only constitute Disqualified Institutions if they are direct competitors of the Borrower and its Subsidiaries and are engaged in at least one of the same lines of business as the Borrower and its Subsidiaries);
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(f)promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed by the Borrower or any Subsidiary to its shareholders generally, as the case may be, and promptly upon receive thereof by the Borrower, copies of any material notices, reports or other communications from any holder of Junior Debt (or any trustee or representative on behalf of such holder);
(g)no later than ninety (90) days after the end of each Fiscal Year, an annual budget for the current Fiscal Year approved by the board of directors of the Borrower including, without limitation, a four-quarter projected income statement, balance sheet and statement of cash flows on a quarter-by-quarter basis; and
(h)promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request.
In the event that any financial statement delivered pursuant to Section 5.1(a) or Section 5.1(b) or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or higher fees for any period (an “Applicable Period”) than the Applicable Margin or fees applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin or fees for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest or fee amount owing as a result of such increased Applicable Margin or fees for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations in accordance with Section 2.12. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and Article VIII hereof.
Any financial statements delivered pursuant to this Section 5.1 shall include segment reporting in accordance with FASB ASC 280.
Section 5.2. Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a)the occurrence of any Default or Event of Default;
(b)(i) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or any Subsidiary or any of their respective assets, franchises or licenses (including their Licenses) which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect or (ii) the loss of any material License to the extent that a Responsible Officer of a Loan Party has knowledge of the loss of such License;
(c)the occurrence of any event or any other development by which the Borrower or any Subsidiary (i) fails to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) becomes subject to any Environmental Liability, (iii) receives notice of any claim with respect to any Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the preceding clauses, which individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d)the occurrence of any ERISA Event that alone, or together with any other ERISA Events which remain uncured or for which liability remains outstanding, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;
(e)the occurrence of any default or event of default, or the receipt by the Borrower or any Subsidiary of any written notice of an alleged default or event of default, with respect to any Material Indebtedness of the Borrower or any Subsidiary;
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(f)upon (and in any event within five (5) Business Days of) the Borrower’s obtaining knowledge of the institution of, or a written threat of, any action, suit, governmental investigation or arbitration proceeding against the Borrower or any Subsidiary, which action, suit, governmental investigation or arbitration proceeding, if adversely determined, could expose, in the Borrower’s reasonable judgment, the Borrower or any Subsidiary to liability in an aggregate amount in excess of $10,000,000; and
(g)any other development in the business or affairs of the Borrower or a Subsidiary that results in, or could reasonably be expected to result in, a Material Adverse Effect.
(h)Each notice delivered under this Section 5.2 shall be accompanied by a written statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to, except as permitted by Section 7.3(a), preserve, renew and maintain in full force and effect its legal existence and its respective rights, licenses (including Licenses), permits, privileges, franchises and owned Intellectual Property (other than the expiration of Intellectual Property at the end of its natural statutory term) material to the conduct of its business and will continue to engage in the same business as presently conducted or such other businesses that are reasonably related thereto; provided, that nothing in this Section 5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental Authority applicable to its business and properties, including without limitation, all Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay and discharge all of its obligations and liabilities (including without limitation all Taxes and all other claims that could result in a statutory Lien) before the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to pay or discharge any such obligations or liabilities could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 5.6. Books and Records. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries shall be made of all financial transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of the Borrower in conformity with GAAP.
Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of its Subsidiaries to, permit any representative of the Administrative Agent, so long as the same does not unreasonably interfere with the business of the Borrower or any Subsidiary, to visit and inspect its properties, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its independent certified public accountants, all at such reasonable times and as often as the Administrative Agent may reasonably request after reasonable prior notice to the Borrower, however, if an Event of Default has occurred and is continuing, no prior notice shall be required; provided, that each Person obtaining any such information shall hold all such information in accordance with, and subject to, the confidentiality provisions of Section 10.11.
Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain all real or tangible property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, (b) maintain with financially sound and reputable insurance companies which are not Affiliates of the Borrower (i) insurance with respect to its properties and business, and the properties and business of its Subsidiaries, against loss or damage of the kinds customarily insured against by companies in the same or similar businesses operating in the same or similar locations and (ii) all insurance required to be maintained pursuant to the Security Documents, and will, upon request of the Administrative Agent, furnish to each Lender at reasonable intervals a certificate of a Responsible Officer setting
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forth the nature and extent of all insurance maintained by the Borrower and its Subsidiaries in accordance with this Section 5.8, (c) maintain the Licenses and all other licenses, permits, permissions and other authorizations used or necessary to operate the radio and television stations as operated from time to time by the Borrower and its Subsidiaries, except to the extent that the failure to maintain the foregoing would not have a Material Adverse Effect, (d) file with the FCC (within the time periods required by the Communications Laws) copies of the Loan Documents to the extent required under Communications Laws, and take such other action as is necessary under the rules and regulations of the FCC to effect the purposes of the Loan Documents, except to the extent that the failure to do so would not have a Material Adverse Effect and (e) at all times shall name the Administrative Agent as additional insured on all liability policies of the Borrower and its Subsidiaries and as loss payee (pursuant to a loss payee endorsement approved by the Administrative Agent) on all casualty and property insurance policies of the Loan Parties.
Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the proceeds of Revolving Loans to finance working capital needs, Capital Expenditures, acquisitions permitted pursuant to Section 7.3(b), Investments permitted pursuant to Sections 7.4(e), (f), (g), (i) and (j) and for other general corporate purposes of the Borrower and its Subsidiaries; provided that in no event shall the proceeds of Revolving Loans be used to prepay, repay, redeem, purchase, exchange, retire, refinance, replace or otherwise discharge any principal amount under the 2027 Unsecured Notes. The Borrower shall use the proceeds of the Tranche B-2 Term Loans and the Tranche B-3 Term Loans to finance a portion of the Closing Date Refinancing Transactions. No part of the proceeds of any Loan will be used, whether directly or indirectly, (a) for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulation T, Regulation U or Regulation X, (b) to fund, finance or facilitate any activities of or business with any Sanctioned Person or in any Sanctioned Country, (c) in any manner that will result in a violation by any Person (including any Person participating in the transaction, whether as a Lead Arranger, a Co-Manager, the Administrative Agent, any Lender (including the Swingline Lender) or the Issuing Banks or otherwise) of Sanctions or (d) in any manner that would violate any Anti-Corruption Laws. All Letters of Credit will be used for general corporate purposes.
Section 5.10. Further Assurances. The Borrower will, and will cause each Subsidiary to, execute any and all further documents, agreements and instruments, and take all such further actions which may be required under any Applicable Law, or which the Administrative Agent or any Lender may reasonably request, to effectuate the transactions contemplated by the Loan Documents.
Section 5.11. The Blocked Accounts.
(a)Each Collateral Related Account owned or maintained by the Borrower or any other Loan Party shall be maintained at a bank or financial institution which is reasonably acceptable to the Administrative Agent (each such bank, an “Approved Bank”). As of the Closing Date, each deposit account and securities account of each Loan Party is listed on Schedule 5.11(a) and such schedule designates which accounts are Collateral Related Accounts and, for any account that is not a Collateral Related Account, the reason such account is not a Collateral Related Account. Each Collateral Related Account maintained by a Loan Party (each such account, a “Blocked Account”) shall be subject to a Control Agreement. Each such Control Agreement shall provide, among other things, that from and after the Closing Date (or the date on which such Control Agreement becomes effective), the relevant Approved Bank, agrees, from and after the receipt of a notice (an “Activation Notice”) from the Administrative Agent (which Activation Notice may, or shall if directed by the Required Lenders, be given by the Administrative Agent at any time at which an Event of Default has occurred and is continuing), to forward immediately all amounts in each Collateral Related Account, as the case may be to the Administrative Agent per its instructions and to commence the process of daily sweeps from such account to the Administrative Agent.
(b)In the event that any Loan Party shall at any time receive any remittances of any of the foregoing directly or shall receive any other funds representing proceeds of the Collateral, such Loan Party shall hold the same as trustee for the Administrative Agent, shall segregate such remittances from its other assets, and shall promptly deposit the same into a Blocked Account.
Section 5.12. Formation of Subsidiaries.
(a)If, at any time, a Subsidiary of the Borrower is required to become a Subsidiary Loan Party after the Closing Date pursuant to this Section 5.12, such Subsidiary shall execute and deliver to the Administrative
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Agent a Pledge and Security Agreement Supplement in the form of Exhibit D to the Security Agreement within ten (10) Business Days after such Subsidiary is so required to become a Subsidiary Loan Party.
(b)If, at any time, the aggregate revenue or assets (on a non-consolidated basis) of the Borrower and those Subsidiaries that are then Subsidiary Loan Parties are less than the Aggregate Subsidiary Threshold, then the Borrower shall cause one or more other Subsidiaries (other than Foreign Subsidiaries or Securitization Subsidiaries) to become additional Subsidiary Loan Parties, as provided in clause (d) below, within ten (10) Business Days after such revenues or assets become less than the Aggregate Subsidiary Threshold so that after including the revenue and assets of any such additional Subsidiary Loan Parties, the aggregate revenue and assets (on a non-consolidated basis) of the Borrower and all such Subsidiary Loan Parties would equal or exceed the Aggregate Subsidiary Threshold.
(c)The Borrower may elect at any time to have any Subsidiary (other than a Foreign Subsidiary or a Securitization Subsidiary) become an additional Subsidiary Loan Party as provided in clause (d) below. Upon the occurrence and during the continuation of any Event of Default, if the Administrative Agent or the Required Lenders so direct, the Borrower shall (i) cause all of its Subsidiaries to become additional Subsidiary Loan Parties, as provided in clause (d) below, within ten (10) Business Days after the Borrower’s receipt of written confirmation of such direction from the Administrative Agent.
(d)A Subsidiary (other than a Foreign Subsidiary or a Securitization Subsidiary) shall become an additional Subsidiary Loan Party by executing and delivering to the Administrative Agent a Subsidiary Guaranty Supplement, accompanied by (i) all other Loan Documents related thereto, (ii) certified copies of certificates or articles of incorporation or organization, by-laws, membership operating agreements, and other organizational documents, appropriate authorizing resolutions of the board of directors of such Subsidiaries, and opinions of counsel comparable to those delivered pursuant to Section 3.1(b), (iii) supplements to the Security Documents or new Security Documents, as applicable, and evidence that such other actions have been taken by such Subsidiaries to grant to the Administrative Agent for the benefit of the Secured Parties valid and enforceable security interests in the Collateral of such Subsidiaries and to cause such security interests to be perfected and have the priority required by the Security Documents and this Agreement and (iv) such other documents as the Administrative Agent may reasonably request. No Subsidiary that becomes a Subsidiary Loan Party shall thereafter cease to be a Subsidiary Loan Party or be entitled to be released or discharged from its obligations under the Subsidiary Guaranty Agreement unless otherwise permitted pursuant to the terms and provisions of this Agreement.
(e)At the time of the formation or acquisition by any Loan Party of a direct Foreign Subsidiary, the Borrower shall pledge, or cause to be pledged, to the Administrative Agent, for its benefit and the benefit of Secured Parties, 100% of the Equity Interests of such Subsidiary (excluding any Excluded Property) owned by any such Loan Party to secure the Secured Obligations; provided that, so long as the total assets owned by each of the Foreign Subsidiaries whose Equity Interests have not been pledged pursuant to this Section 5.12 does not exceed $10,000,000 in the aggregate at the time of determination, such pledge of the Equity Interests of such Foreign Subsidiary shall not be required (other than pursuant to the Security Agreement); provided, further, that if the Borrower determines in good faith that such pledge of the Equity Interests of such Foreign Subsidiary shall result in adverse tax consequences to the Borrower or any of its Subsidiaries, any such Loan Party shall only be required to pledge not less than 65% (or, if the aggregate ownership interest of any such Loan Party is less than 65%, such lesser amount owned by such Loan Party) of the voting Equity Interests of such Foreign Subsidiary and not less than 100% (or, if the aggregate ownership interest of any such Loan Party is less than 100%, such lesser amount owned by such Loan Party) of the non-voting Equity Interests of such Foreign Subsidiary (in each case, excluding any Excluded Property).
(f)Nothing in this Section 5.12 shall authorize the Borrower or any Subsidiary of the Borrower to form or acquire any Subsidiary unless the formation or acquisition of such Subsidiary is permitted pursuant to Article VII. Any document, agreement or instrument executed or issued pursuant to this Section 5.12 shall be a “Loan Document” for purposes of this Agreement.
(g)Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower and each other Loan Party, as applicable, shall at all times pledge, or cause to be pledged, to the Administrative Agent, for its benefit and the benefit of the Secured Parties, (i) in connection with the A/R Securitization Facility, 100% of the Equity Interests of Scripps SPV Midco, LLC (or any successor thereto) subject to the terms of the Non-Disturbance Agreement, which shall remain in full force and effect and (ii) in connection with any other Qualified Securitization Financing or Receivables Facility, 100% of the Equity Interests of any Securitization Subsidiary (or
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any other Subsidiary) that owns or holds Receivables Assets or Securitization Assets and incurs Indebtedness under such Qualified Securitization Financing or Receivables Facility; provided that, to the extent the terms of such Qualified Securitization Financing or Receivables Facility prohibit the pledge of Equity Interests of such Securitization Subsidiary (or other Subsidiary), the Borrower shall and each Loan Party, as applicable, shall pledge, or cause to be pledged, 100% of the Equity Interests of a Subsidiary (such a Subsidiary, a “Securitization Holdco”) that directly owns the Equity Interests of such Securitization Subsidiary and the Administrative Agent shall be authorized to enter into a Non-Disturbance Agreement in respect of such pledge. Notwithstanding anything to the contrary herein or in any other Loan Document, neither Scripps SPV Midco, LLC nor any Securitization Holdco shall engage in any material operating or business activities or create, incur, assume or suffer to exist any Indebtedness.
Section 5.13. Real Estate.
(a)The Loan Parties shall not be required to provide mortgages or any related documents with respect to any Real Estate.
(b)The Loan Parties shall not be required to obtain any Collateral Access Agreements that have not been obtained prior to the Closing Date.
Section 5.14. Post-Closing Obligations. The Borrower shall deliver to the Administrative Agent each of the documents, instruments, agreements and other items described on Schedule 5.14, and/or take the actions described on Schedule 5.14 on or prior to the date(s) specified with respect to such delivery as set forth on Schedule 5.14, as such dates may be extended by the Administrative Agent. All such deliverables shall be in form and substance reasonably satisfactory to the Administrative Agent.
Section 5.15. Corporate Credit Ratings. The Borrower shall use commercially reasonable efforts to obtain and maintain a public corporate family and/or corporate credit rating, as applicable, and public ratings in respect of the Tranche B-2 Term Loans and the Tranche B-3 Term Loans, in each case from each of S&P and Moody’s.
Section 5.16. Conference Calls. The Borrower shall, within 10 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the date of the delivery of the annual financial information pursuant to Section 5.1(a), hold a conference call or teleconference, at a time selected by the Borrower and reasonably acceptable to the Administrative Agent, with all of the Lenders that choose to participate, to review the financial results of the previous fiscal year, as the case may be, of the Borrower (it being understood that any such call may be combined with any similar call held for any of the Borrower’s other lenders or security holders).
ARTICLE VI
FINANCIAL COVENANTS
Section 6.1. Non-Extended Revolving Facility Financial Covenant. The Borrower covenants and agrees that so long as any Lender has any Non-Extended Revolving Commitment hereunder or any Obligation under the Non-Extended Revolving Facility remains unpaid or outstanding, the Borrower shall not permit the Existing First Lien Net Leverage Ratio on the last day of any Fiscal Quarter (beginning with the first Fiscal Quarter ending June 30, 2025) ending during any period set forth below to exceed the ratio set forth opposite such period:

Period | Existing First Lien Net Leverage Ratio
Fiscal Quarter ending June 30, 2025 through Fiscal Quarter ending September 30, 2025 | 4.75 to 1.00
Fiscal Quarter ending December 31, 2025 and thereafter | 4.50 to 1.00

Section 6.2. Initial Revolving Facility Financial Covenant. The Borrower covenants and agrees that so long as any Lender has an Initial Revolving Commitment hereunder or any Obligation under the Initial
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Revolving Facility remains unpaid or outstanding, the Borrower shall not permit the First Lien Net Leverage Ratio on the last day of any Fiscal Quarter (beginning with the first Fiscal Quarter ending June 30, 2025) ending during any period set forth to exceed the ratio set forth below opposite such period:

Period | First Lien Net Leverage Ratio
Fiscal Quarter ending June 30, 2025 through Fiscal Quarter ending September 30, 2026 | 3.50 to 1.00
Fiscal Quarter ending December 31, 2026 and thereafter | 3.25 to 1.00

Section 6.3. Pro Forma Adjustments. With respect to any period during which a Permitted Acquisition or a Disposition has occurred (each, a “Subject Transaction”), for purposes of determining the First Lien Net Leverage Ratio (including for purposes of determining compliance with Section 6.2) and the Existing First Lien Net Leverage Ratio (including for purposes of determining compliance with Section 6.1) , Consolidated EBITDA shall be calculated with respect to such period on a Pro Forma Basis (including pro forma adjustments approved by the Administrative Agent in its sole discretion which are not otherwise contemplated in the definition of “Consolidated EBITDA”) using the historical audited financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of the Borrower and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period); provided that if such business so acquired does not have historical audited financial statements, unaudited financial statements which are in form and substance reasonably acceptable to the Administrative Agent may be used in lieu thereof.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any Obligation remains outstanding:
Section 7.1. Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:
(a)Indebtedness created pursuant to the Loan Documents;
(b)Indebtedness of the Borrower and its Subsidiaries existing on the Closing Date and set forth on Schedule 7.1 and any Permitted Refinancing thereof;
(c)Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancing of any of the foregoing; provided, that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvements, (ii) the aggregate principal amount of such Indebtedness under this clause (c) does not exceed at any time outstanding $55,000,000, (iii) such Indebtedness cannot be incurred pursuant to any committed bulk financing facilities and (iv) such Indebtedness must be incurred for bona fide business purposes;
(d)Indebtedness of the Borrower owing to any Subsidiary or of any Subsidiary owing to the Borrower or any other Subsidiary, in each case, to the extent constituting an Investment permitted by Section 7.4; provided that any Indebtedness of the Borrower or any Subsidiary Loan Party in each case owed to any Subsidiary that is not a Subsidiary Loan Party shall be unsecured and subordinated to the Secured Obligations in right of payment (other than with respect to any Securitization Subsidiary) pursuant
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to terms of the Global Intercompany Note; provided, further, that any Indebtedness of a Subsidiary that is not a Subsidiary Loan Party owed to the Borrower and/or any Subsidiary Loan Party shall made in compliance with and deemed to utilize Investment capacity under Section 7.4(k);
(e)Indebtedness in respect of Hedge Agreements permitted pursuant to Section 7.10 not entered into for speculative purposes;
(f)Indebtedness of the Borrower or any Subsidiary incurred or assumed in connection with any Permitted Acquisition (including, so long as no Event of Default shall have occurred and be continuing or would result therefrom, Permitted Refinancings thereof); provided, that (i)(A) in the case of any such Indebtedness secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the First Lien Gross Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions, is not greater than 2.00 to 1.00, (B) in the case of any such Indebtedness secured by Liens on Collateral ranking junior to the Liens securing the Obligations, the Senior Secured Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions, is not greater than 4.50 to 1.00 and (C) in the case of unsecured Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions, is not greater than 5.00 to 1.00, (ii) in addition to the other requirements set forth herein, any incurred Indebtedness (but not assumed Indebtedness) under this Section 7.1(f) shall be subject to the applicable limitations and conditions applicable to Incremental Loans pursuant to Section 2.24(a) and (b) if such Indebtedness is in the form of a revolving facility and Section 2.24(a) and (c) if such Indebtedness is in the form of a term loan facility or other Indebtedness, including, without limitation, any Incremental Incurrence Conditions (as if such Indebtedness were New Loans) and, solely with respect to Indebtedness that is secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the MFN Protection, (iii) no Event of Default exists at the time of Incurrence or assumption of such Indebtedness or would result therefrom, (iv) the Weighted Average Life to Maturity applicable to any such Indebtedness is not shorter than the Tranche B-2 Term Loans and/or the Tranche B-3 Term Loans and any such Indebtedness does not mature prior to the date occurring 91 days following the Latest Maturity Date for any Class of Term Loans (in effect as of the date such Indebtedness is incurred), (v) such Indebtedness does not mature prior to the date occurring 91 days following the Initial Revolving Commitment Termination Date (in effect as of the date such Indebtedness is Incurred), (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties, and remedies, but excluding as to interest rate, call protection and redemption premium), taken as a whole, are no more restrictive or onerous in any material respect than the terms applicable to the Borrower under this Agreement and the other Loan Documents, unless the Borrower offers to amend this Agreement to include any such more restrictive or onerous terms; provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five (5) Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or the then most current drafts of the documentation relating thereto, certifying that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement of this sub-clause (vi) shall be conclusive evidence that such terms and conditions satisfy such foregoing requirement, (vii) such Indebtedness shall not be incurred or Guaranteed by any Person other than the Loan Parties, (viii) such Indebtedness is not secured by any Lien on any property or assets of the Borrower or any of its Subsidiaries other than property or assets constituting Collateral under the Loan Documents; (ix) prior to the Incurrence of such Indebtedness, the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of preceding clauses (i) through (viii) together with a Compliance Certificate setting forth in reasonable detail the calculations of the First Lien Gross Leverage Ratio, Senior Secured Net Leverage Ratio and/or Total Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of the preceding clause (ii) have been met; (x) (A) any secured Indebtedness permitted under this Section 7.1(f) secured by Liens on Collateral that rank pari passu in right of security with the Liens securing the Secured Obligations shall be subject to the First Lien Intercreditor Agreement and (y) any secured Indebtedness permitted under this Section 7.1(f) secured by Liens on Collateral that rank junior in right of security to the Liens securing the Secured Obligations shall be subject to a Junior Lien Intercreditor Agreement, (xi) the
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underlying Permitted Acquisition must be made for bona fide business purposes, and (xii) any assumed Indebtedness (but not incurred Indebtedness) under this Section 7.1(f) (A) shall not exceed the aggregate principal amount of $55,000,000 at any time outstanding, (B) shall be non-recourse to the Collateral and (C) shall not be incurred in contemplation of the underlying Permitted Acquisition;
(g)Guarantees incurred by the Borrower or any of its Subsidiaries of Indebtedness of the Borrower or any of its Subsidiaries so long as such Indebtedness and, if applicable, Guarantees, is permitted under this Section 7.1; provided that (x) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with and deemed to utilize Investment capacity under Section 7.4(k) and (y) Guarantees permitted under this clause (g) shall be subordinated to the Obligations to the same extent as the terms of the Indebtedness so Guaranteed;
(h)Indebtedness consisting of contingent liabilities in respect of any indemnification, working capital adjustment, purchase price adjustment, non-compete, consulting, deferred compensation, earn-out obligations, contingent consideration, contributions, and similar obligations, incurred in connection with any Permitted Acquisition, any Investment permitted under Section 7.4 or any disposition permitted under Section 7.6; provided that both as of the date of the Incurrence of such Indebtedness and immediately after giving effect thereto on a Pro Forma Basis for the Test Period, the Borrower is in compliance with the financial ratio set forth in Section 7.3(b)(ii) and no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(i)Indebtedness consisting of the financing of insurance premiums in respect of insurance required by this Agreement or otherwise incurred in the ordinary course of business;
(j)cash management obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements in the ordinary course of business;
(k)other Indebtedness Incurred by the Borrower or any Subsidiary Loan Party so long as (i) no Event of Default exists at the time of Incurrence thereof or would result therefrom, (ii) (A) in the case of any such Indebtedness secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations, the First Lien Gross Leverage Ratio on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 2.00 to 1.00, (B) in the case of any such Indebtedness secured by Liens on Collateral ranking junior to the Liens securing the Obligations, the Senior Secured Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.50 to 1.00 and (C) in the case of unsecured Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 5.00 to 1.00, (iii) any Indebtedness incurred pursuant to clause (ii)(A) above that are secured by Liens on Collateral ranking pari passu with the Liens securing the Obligations shall be subject to the MFN Protection, (iv) the Weighted Average Life to Maturity applicable to any such Indebtedness is not shorter than the Tranche B-2 Term Loans and/or the Tranche B-3 Term Loans and any such Indebtedness does not mature prior to the date occurring 91 days following the Latest Maturity Date for any Class of Term Loans (in effect as of the date such Indebtedness is incurred), (v) such Indebtedness does not mature prior to the date occurring 91 days following the Initial Revolving Commitment Termination Date (in effect as of the date such Indebtedness is Incurred), (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties, and remedies, but excluding as to interest rate, call protection and redemption premium), taken as a whole, are no more restrictive or onerous in any material respect than the terms applicable to the Borrower under this Agreement and the other Loan Documents, unless the Borrower offers to amend this Agreement to include any such more restrictive or onerous terms; provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five (5) Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or the then most current drafts of the documentation relating thereto, certifying that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement of this sub-clause (vi) shall be conclusive evidence that such terms and conditions
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satisfy such foregoing requirement, (vii) such Indebtedness shall satisfy the Incremental Incurrence Conditions to the extent not otherwise set forth above (as if such Indebtedness were New Loans), (viii) any Indebtedness incurred pursuant to this clause (k) for the purpose of repaying, prepaying, exchanging, defeasing, refinancing, replacing, retiring or otherwise discharging the Senior Unsecured Notes shall only be permitted to be incurred on or prior to the maturity date of 2027 Unsecured Notes as in the effect on the date hereof; and (ix) prior to the Incurrence of such Indebtedness, the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of preceding clauses (i) through (viii) together with a Compliance Certificate setting forth in reasonable detail the calculations of the First Lien Gross Leverage Ratio, Senior Secured Net Leverage Ratio and/or Total Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of the preceding clause (ii) have been met;
(l)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Indebtedness Incurred by the Borrower or any Subsidiary; provided that the aggregate principal amount of Indebtedness outstanding under this clause (l) at any time does not exceed $45,000,000; provided that (i) if such Indebtedness is incurred by a Loan party, it must be either unsecured or secured by Liens on Collateral ranking junior to the Liens securing the Obligations and, in the case of Indebtedness for borrowed money, subject to a Junior Lien Intercreditor Agreement, (iii) such Indebtedness must be incurred for a bona fide business purpose and (iv) such Indebtedness shall not be owed to or otherwise provided by an Affiliate of the Borrower;
(m)[reserved];
(n)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, Joint Ventures in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 7.1(n), does not exceed $15,000,000; provided that such Indebtedness shall not be provided by an Affiliate of the Borrower;
(o)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 7.1(o), does not exceed $5,000,000; provided that such Indebtedness (i) must be incurred only for a bona fide business purpose and (ii) shall not be provided by an Affiliate of the Borrower;
(p)Indebtedness pursuant to (i) the A/R Securitization Facility or any other Qualified Securitization Financing and Receivables Facility and (ii) any Permitted Refinancings in whole (and not in part) thereof that satisfies the requirements of any Qualified Securitization Financing or Receivables Facility; provided that in no event shall any such Permitted Refinancings thereof (or any successive Permitted Refinancings) contain any “make-whole” or prepayment premiums, exit fee or similar fee or premium that results in a payment (in the aggregate) in excess of 2.0% of the aggregate amount of Indebtedness prepaid; provided, further, that the aggregate amount of commitments outstanding at any one time for such Indebtedness incurred under this clause (p) shall not exceed $450,000,000 in the aggregate and in no event shall any borrowings thereunder exceed the lesser of $450,000,000 and the borrowing base under such facility; provided, further, that prior to incurring A/R Securitization Facility or any other Qualified Securitization Financing or Receivables Facility pursuant to sub-clause (ii) of this clause (p), the Borrower shall make a “first offer” by delivery of such offer to the Administrative Agent for each Lender to fund its pro rata share (calculated based on its outstanding Loans) of such on the terms set forth in such offer no later than seven (7) Business Days following notice from the Administrative Agent informing such Lender of such offer and, if such Lender shall not have affirmatively accepted such offer within such time period, such Lender shall be deemed to have declined the offer to fund its pro rata share of the offered refinancing of the A/R Securitization Facility, Qualified Securitization Financing or Receivables Facility, as applicable (and if one or more Lenders shall fail to accept the offer to fund their pro rata shares of the requested facility, then the Borrower, at its election, may offer such non-consenting Lender’s portion to any other Lender under this Agreement on a non-pro rata basis or any other Person, in each case, (x) on the
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same terms and (y) at the same (or lesser) yield, as previously provided to each Lender in the “first-offer” of such Indebtedness);
(q)[Reserved];
(r)earn-out obligations, including purchase price adjustments, incurred in connection with any Permitted Acquisition, any Investment permitted under Section 7.4 or any disposition permitted under Section 7.6;
(s)Indebtedness representing Refinancing Term Loans, Replacement Revolving Facilities and/or Refinancing Notes; and
(t)(x) Indebtedness representing the Senior Secured Notes (including Guarantees thereof subject to the proviso immediately below) outstanding on the Closing Date (reduced on a dollar for dollar basis by the principal amount of Senior Secured Notes repurchased or redeemed) and, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Permitted Refinancing thereof; provided, that (i) such Indebtedness shall not at any time be Guaranteed by any Person other than the Guarantors and (ii) such Indebtedness shall not at any time be secured by any Lien on any property or assets of the Borrower or any of its Subsidiaries that does not also secure the Secured Obligations and (y) Indebtedness representing the Senior Unsecured Notes (including Guarantees thereof subject to the proviso immediately below) outstanding on the Closing Date (reduced on a dollar for dollar basis by the principal amount of Senior Unsecured Notes repurchased or redeemed) and, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Permitted Refinancing thereof; provided, that (i) such Indebtedness shall not at any time be Guaranteed by any Person other than the Guarantors, (ii) such Indebtedness shall not at any time be secured by any Lien on any property or assets of the Borrower or any of its Subsidiaries and (iii) no repayment, prepayment, redemption, exchange, refinancing, replacement, defeasance, retirement or discharge of any principal payment under the 2027 Unsecured Notes shall be made with the proceeds of any A/R Securitization Facility or any other Qualified Securitization Financing and Receivables Facility or with borrowings under the Revolving Facilities.
Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, (i) all Indebtedness owed by the Borrower or any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be unsecured and subordinated in right payment to the Secured Obligations (other than with respect to any Securitization Subsidiary) pursuant to the Global Intercompany Note and (ii) 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 (clauses (i) and (ii) above, together, the “Double-Dip Protection”). In the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness permitted above, the Borrower may classify such item of Indebtedness in any manner that complies with this covenant and may from time to time reclassify such items of in whole or in part as Indebtedness in any manner that would comply with any of the categories of this covenant at the time of such reclassification.
Section 7.2. Liens; Negative Pledge. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired or, except:
(a)Permitted Liens;
(b)purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any other asset; and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets;
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(c)extensions, renewals, or replacements of any Lien referred to in clauses (a) and (b) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(d)Liens existing on property of a Subsidiary or other property acquired by the Borrower or any of its Subsidiaries at the time of its acquisition after the Closing Date pursuant to a Permitted Acquisition or other Investment permitted hereunder; provided that (i) such Lien was not created in contemplation of such acquisition, (ii) such Lien does not extend to or cover any other assets or property other than the property and assets of such Subsidiary at the time of the acquisition (and after acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby is permitted under Section 7.1(f); and
(e)(i) Liens on Collateral secured on a pari passu basis with the Liens securing the Obligations, so long as such Liens (x) secure Indebtedness permitted pursuant to Sections 7.1(f)(i)(A), 7.1(k)(ii)(A) or 7.1(s) and (y) are subject to the First Lien Intercreditor Agreement and/or (ii) Liens on Collateral secured on a junior basis with the Liens securing the Obligations, so long as such Liens (x) secure Indebtedness permitted pursuant to Sections 7.1(f)(i)(B), 7.1(k)(ii)(B) or 7.1(s) and (y) are subject to a Junior Lien Intercreditor Agreement; provided that, in the case of Liens incurred in connection with any Indebtedness assumed pursuant to Section 7.1(f)(i)(A) or 7.1(f)(i)(B), such Liens and the Indebtedness secured by such Liens shall not have been incurred or created in connection with or in contemplation of the acquisition or assumption thereof;
(f)Liens with respect to property or assets of the Borrower or any Subsidiary securing obligations in an aggregate principal amount outstanding that, immediately after giving effect to the creation of such Liens, would not exceed $45,000,000; provided that if such Liens are on Collateral, they must be secured on a junior basis to the Liens securing the Obligations pursuant to a Junior Lien Intercreditor Agreement;
(g)Liens on the Securitization Assets, Receivables Assets or Equity Interests of Securitization Subsidiaries arising in connection with a Qualified Securitization Financing or a Receivables Facility; and
(h)Liens securing Indebtedness incurred pursuant to Section 7.1(t)(x); provided that (i) such Liens shall be solely on property and assets securing the Secured Obligations and (ii) such Liens shall be pari passu with Liens securing the Secured Obligations pursuant to the First Lien Intercreditor Agreement.
Notwithstanding the foregoing or anything else to the contrary herein, the Borrower will not, and will not permit any of its Subsidiaries to (A) grant a Lien in favor of any Person on any Real Estate (other than any Liens granted to secure all of the Secured Obligations and other than Liens described in clauses (b) or (e) of the definition of “Permitted Liens”) or (B) enter into, assume or otherwise be bound by any Negative Pledge except for a Negative Pledge contained in an agreement relating to the sale of a Subsidiary that owns Real Estate or the sale of specific Real Estate pending such sale; provided that in any such case the Negative Pledge applies only to the Subsidiary or the Real Estate that are the subject of such sale. In the event that any Lien meets the criteria of more than one of the categories of any Lien permitted above, the Borrower may classify such Lien in any manner that complies with this covenant and may from time to time reclassify such items of in whole or in part as a Lien in any manner that would comply with any of the categories of this covenant at the time of such reclassification.
Section 7.3. Fundamental Changes; Permitted Acquisitions.
(a)The Borrower will not, and will not permit any of its Subsidiaries to, merge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it (except, in either case, as may be permitted by clause (b) immediately below), or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and immediately after giving effect
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thereto on a pro forma basis, no Default or Event of Default shall have occurred and be continuing (i) a Subsidiary of the Borrower may merge with and into the Borrower or another Subsidiary; provided, that (A) in the case of a merger or consolidation involving the Borrower, the Borrower shall be the survivor of such merger or consolidation and (B) in the case of a merger or consolidation involving a Loan Party, a Loan Party shall be the survivor of such merger or consolidation, (ii) a Subsidiary of the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to a Loan Party, and (iii) a Subsidiary of the Borrower may liquidate or dissolve in accordance with Applicable Law if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and its Subsidiaries and will not adversely affect the Borrower’s ability to perform its obligations under this Agreement; provided, that in the case of a dissolution involving a Loan Party, the assets of such Loan Party must be transferred to another Loan Party.
(b)No Loan Party will make or otherwise permit to be consummated an Acquisition unless each of the following conditions shall have been satisfied or waived by the Required Lenders (each such Acquisition, to the extent each of the following conditions shall have been satisfied or waived by the Required Lenders, a “Permitted Acquisition”):
(i)any Person or assets or division as acquired in accordance herewith shall be in same business or lines of business in which the Borrower and/or its Subsidiaries are engaged as of the Closing Date or similar, related, ancillary or complementary businesses, and which business would not subject the Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to the Loan Parties prior to such Permitted Acquisition;
(ii)the Borrower shall have delivered to Administrative Agent, at least 10 Business Days (or such shorter period agreed to by the Administrative Agent) prior to such proposed acquisition, (A) a Compliance Certificate demonstrating that, after giving effect to the proposed Permitted Acquisition and the Incurrence of any Indebtedness in connection therewith on a Pro Forma Basis, the Borrower would be permitted to incur at least $1.00 of Indebtedness pursuant to Section 7.1(k) and (B) all other relevant financial information with respect to such acquired assets, including the aggregate consideration for such acquisition and any other information required to demonstrate compliance with the foregoing clause (A);
(iii)in the case of the purchase or other acquisition of Equity Interests, the requisite percentage of Equity Interests (except for any such securities in the nature of directors’ qualifying shares required pursuant to Applicable Law) acquired or otherwise issued by such Person or any newly formed Subsidiary of the Borrower in connection with such acquisition shall be pledged by the applicable Loan Party to the Administrative Agent to the extent required by Section 5.12, and the Borrower shall have taken, or caused to be taken, promptly, each of the other actions set forth in Section 5.12;
(iv)the purchase is consummated pursuant to a negotiated acquisition agreement on a non-hostile basis and approved by the Permitted Acquisition Target’s board of directors or comparable governing body (and shareholders, if necessary) prior to the consummation of the Permitted Acquisition;
(v)the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Liens permitted by Section 7.2);
(vi)with respect to any transaction or series of related transactions involving Acquisition Consideration of more than $100,000,000, at least 10 Business Days (or such shorter period agreed to by the Administrative Agent) prior to such proposed acquisition, the Borrower shall have delivered to Administrative Agent (i) written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition, (ii) a copy of the purchase agreement related to the proposed Permitted Acquisition (and any related documents reasonably requested by Administrative Agent) and (iii) to the extent available, quarterly and annual financial statements of the Person whose Equity Interests or assets are being acquired for the twelve (12) month period immediately prior to such proposed Permitted Acquisition, including any audited financial statements for such period that are available;
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(vii)at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(viii)any Person acquired in connection with a Permitted Acquisition shall become a Loan Party or any assets acquired pursuant to a Permitted Acquisition shall be transferred to a Loan Party, in each case, within 10 Business Days of the consummation of such acquisition, and any such assets acquired pursuant to a Permitted Acquisition (other than any Excluded Property) shall be pledged as Collateral within the applicable timeframes set forth in this Agreement or the Security Agreement, as applicable; and
(ix)after giving effect to such acquisition, the Total Net Leverage Ratio, on a Pro Forma Basis, does not exceed the Total Net Leverage Ratio immediately prior to the consummation of such Permitted Acquisition.
(c)The Borrower will not, and will not permit any of its Subsidiaries to, engage in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and businesses reasonably related, ancillary or complementary thereto.
Section 7.4. Investments, Loans, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, purchase or acquire all or substantially all of the assets of another Person, or create or form any Subsidiary, or make capital contributions to another Person (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions; provided, that:
(a)the Borrower and its Subsidiaries may make and hold Permitted Investments;
(b)(i) the Borrower and its Subsidiaries may hold the Investments existing on the Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c)any Investments of a Person in existence at the time such Person becomes a Subsidiary of the Borrower may be held by such Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Subsidiary of the Borrower;
(d)the Borrower and its Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors, in each case, in connection with transactions with unaffiliated third parties entered into for bona fide business purposes;
(e)so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make Investments (and, thereafter, may hold such Investments) for bona fide business purposes in an aggregate amount not to exceed at any time, together with all other outstanding Investments under this clause (e), $40,000,000; provided that in no event shall any Investment under this clause (e) be made in any Subsidiary that is not a Loan Party other than an Investment in a Joint Venture made for bona fide business purposes;
(f)so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 3.25 to 1.00 immediately prior to and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Subsidiaries may make additional Investments (and thereafter hold such Investments) for bona fide business purposes; provided that in no event shall any Investment under this clause (f) be made in any Subsidiary that is not a Loan Party other than an Investment in a Joint Venture made for bona fide business purposes; provided, further, that prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
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(g)so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $5,000,000 at any time outstanding and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h)a Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Subsidiary comply with the provisions of Section 5.12;
(i)without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j)the Borrower and its Subsidiaries may make (x) investments in a Securitization Subsidiary or any investment by a Securitization Subsidiary in any other Person in connection with a Qualified Securitization Financing and (y) distributions or payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing or Receivables Facility;
(k) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments by the Borrower or any Subsidiary in the Borrower or any Subsidiary; provided that the aggregate amount of Investments pursuant to this clause (k) in Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time, together with all other outstanding Investments in Subsidiaries that are not Loan Parties under this clause (k), $5,000,000; provided, further, that any Investment under this clause (k) shall be made for bona fide business purposes;
(l)Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10(e); and
(m)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Investments in Joint Ventures made for bona fide business purposes in an aggregate amount not to exceed at any time, together with all other outstanding Investments under this clause (m), $25,000,000.
Investment capacity under any exception under this Section 7.4 (including in respect of the Available Amount) shall not be (x) replenished or increased above the original cost of such Investments and (y) increased or net of returns if (A) the Investment is made in connection with or in contemplation of or with the intent to facilitate or enable the making of such return or (B) the return (whether in the form of cash and Permitted investments or otherwise) on the Investment occurs substantially concurrently with the Investment.
Section 7.5. Restricted Payments. The Borrower will not, and will not permit its Subsidiaries to, directly or indirectly (i) declare or make, or agree to pay or make, any dividend (other than dividends payable by the Borrower solely in shares of any class of its common stock (other than Disqualified Equity Interests)) on any class of its Equity Interests, (ii) make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, or other acquisition of, any Equity Interests of the Borrower or any Subsidiary or any options, warrants, or other rights to purchase such Equity Interests, whether now or hereafter outstanding or (iii) make any prepayment of principal of, or voluntary payment into a sinking fund for the retirement of, or any defeasance, purchase or other acquisition for value of any Junior Debt of the Borrower or its Subsidiaries (each of the foregoing, a “Restricted Payment”); provided, that:
(a)Subsidiaries of the Borrower may in any event declare and pay cash and other dividends to the Borrower or another Loan Party; provided that, notwithstanding anything else in this Agreement to the contrary, in no event shall any Loan Party may make any Restricted Payment to a Subsidiary that is not a Loan Party;
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(b)(i) the Borrower and its Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $10,000,000 during the term of this Agreement; provided that the Restricted Payments made in reliance of this clause (b)(i) may not be used to repay, prepay, redeem, exchange, defease, discharge or otherwise retire any principal amount in respect of Junior Debt of the Borrower or its Subsidiaries or preferred Equity Interests, and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make additional Restricted Payments if, as of the date of such proposed Restricted Payment and immediately after giving effect thereto on a Pro Forma Basis for the Test Period, the Total Net Leverage Ratio does not exceed 2.50 to 1.00 and the Borrower delivers to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (b)(ii) have been met;
(c)Restricted Payments the proceeds of which are used to purchase or redeem the Equity Interests of the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of the Borrower; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed $5,000,000 in any Fiscal Year; provided that any such unused amounts in any Fiscal Year may be carried forward to the subsequent Fiscal Year (but not to any further subsequent Fiscal Years);
(d)so long as the Available Amount Conditions are satisfied at the time of the making of a Restricted Payment, the Borrower and its Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount; provided that with respect to Restricted Payments consisting of preferred dividends the Borrower may use this basket only if (1) less than $50,000,000 of 2027 Unsecured Notes remain outstanding after giving effect to such Restricted Payment, (2) the Borrower has a positive Excess Cash Flow (calculated for such fiscal year as of the date of such Restricted Payment (as opposed to on an annual basis) after giving effect to such Restricted Payment on a pro forma basis) and (3) the date on which such Restricted Payment is made is on or after January 1, 2027;
(e)Restricted Payments in the form of regular dividend payments on the Borrower’s common stock in an amount not to exceed $5,000,000 in any Fiscal Year; provided that any such unused amounts in any Fiscal Year may be carried forward to subsequent Fiscal Years in an aggregate amount not to exceed 25% of the cumulative amount permitted pursuant to this clause (e) (for the avoidance of doubt, prior to giving effect to this proviso);
(f)the Borrower and its Subsidiaries may repay, prepay or redeem Junior Debt (including 2027 Unsecured Notes) in an amount not to exceed the then available (x) Cumulative Retained Excess Cash Flow Amount plus (y) Retained Declined Proceeds (together, the “Junior Debt ECF Basket”); provided that the available capacity under the Junior Debt ECF Basket shall be reduced on a dollar-for-dollar basis by any amount of Cumulative Retained Excess Cash Flow Amount or Retained Declined Proceeds, as applicable, utilized under the “Available Amount”;
(g)the Borrower and its Subsidiaries may refinance or repurchase the 2027 Unsecured Notes and/or 2031 Unsecured Notes with Indebtedness incurred pursuant to Section 7.1(k), in each case, on or before the maturity of the 2027 Unsecured Notes as in effect on the date hereof; and
(h)Restricted Payments (including any Securitization Fees) made in connection with Indebtedness incurred under Section 7.1(p).
Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, in no event shall the Borrower or any Subsidiary be permitted to use the proceeds of any Revolving Facility (including any New Revolving Commitment) or any Indebtedness incurred under Section 7.1(p) to repay, prepay, redeem, exchange, defease, discharge or otherwise retire any amounts in respect of any principal payment under the 2027 Unsecured Notes.
Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets, business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary of the Borrower, issue or sell any shares of such
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Subsidiary’s Equity Interests to any Person other than the Borrower or any wholly-owned Subsidiary of the Borrower (or to qualify directors if required by Applicable Law), except:
(a)the sale or other disposition in the ordinary course of business for fair market value of obsolete, surplus or worn-out property or other immaterial property or abandonments, cancellations or lapses of Intellectual Property no longer material to the operation of the business of the Borrower and its Subsidiaries, taken as a whole;
(b)the sale or other disposition of products, services, receivables and Permitted Investments or constituting the non-exclusive licensing or non-exclusive sub-licensing of Intellectual Property or other general intangibles and non-exclusive licenses, non-exclusive sub-licenses, leases or subleases of other property, so long as (i) in each of the foregoing cases, such transaction is in the ordinary course of business and consistent with past practice and (ii) in the case of non-exclusive licenses, non-exclusive sub-licenses, leases and subleases of property or assets, such transactions do not interfere in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;
(c)so long as no Default or Event of Default then exists or would result therefrom and the Borrower complies with Section 2.12(c), the sale or other disposition of assets in connection with Sale/Leaseback Transactions permitted under Section 7.9;
(d)the Borrower and its Subsidiaries may grant leases or subleases to other Persons of excess office or other space so long as such lease or sublease (x) does not materially interfere with the conduct of the business of the Borrower or any Subsidiary and (y) is on fair and reasonable terms and conditions;
(e)[reserved];
(f)so long as the Borrower complies with Section 2.12(d), the sale or other disposition of any asset in connection with an Event of Loss;
(g)the concurrent exchange of a television broadcast station or radio station or of long-term Station operating assets or cash or of any digital business (including the Equity Interests of a Person which owns long-term Station operating assets or digital business assets), for which a Loan Party receives cash, Permitted Investments or Station operating assets or digital business operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith (except that the Loan Parties may only receive (I) radio station assets (and cash) in exchange for radio station assets (and cash) or digital business operating assets (and cash) owned by a Loan Party and (II) television broadcast assets (and cash) in exchange for digital business operating assets (and cash), radio station assets (and cash) or television broadcast assets (and cash) owned by a Loan Party); provided that (i) no Default or Event of Default then exists or would result therefrom, (ii) the aggregate amount of all cash and Permitted Investments received by a Loan Party in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (iii) the aggregate amount of all cash and Permitted Investments paid by a Loan Party in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by a Loan Party in connection with such asset exchange, (iv) any cash or Permitted Investments that are received by a Loan Party in connection with any asset exchange pursuant to this Section 7.6(g) shall be applied pursuant to Section 2.12(c), (v) such asset exchanges must be made for bona fide business purposes and (vi) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(i)a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(ii)at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Responsible Officer of the Borrower, (1) certifying that the property or other consideration received by the Loan Parties is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating the Borrower’s compliance with the Financial Covenant set forth in Section 6.2 (as determined and adjusted pursuant to Section 6.3) after giving effect to such exchange (regardless of whether the Financial
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Covenant is then required to be tested at the time of such exchange) and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(iii)such other additional financial information as the Administrative Agent shall reasonably request;
(h)Dispositions of property or assets by the Borrower and/or any Subsidiary (including Sale/Leaseback Transactions permitted pursuant to Section 7.9, so long as (i) such Disposition is for fair market value (as determined in good faith by the Borrower) and is made for bona fide business purposes, (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided that for purposes of this clause (ii), any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition shall be deemed to be cash, so long as the aggregate amount of such Designated Non-Cash Consideration has an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this Section 7.6(h) and Section 7.6(i) below at any time, not to exceed $5,000,000, (iii) both immediately prior to and immediately after giving effect to any such sale or other Disposition, no Event of Default shall have occurred, and (iv) in no event shall a Disposition made under this Section 7.6(h) be used for sale of all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole));
(i)the sale or other disposition of a television broadcast station or of long-term Station operating assets or of any digital business (including the Equity Interests of a Person which owns television broadcast station or long-term Station operating assets or digital business assets, if the proceeds of such sale or other disposition are used within one year of such sale or other disposition to purchase other television broadcast station or of long-term television Station operating assets (including the Equity Interests of a Person which owns television broadcast station or long-term television Station operating assets); so long as (i) such Disposition is for fair market value (as determined in good faith by the Borrower), (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided that for purposes of this clause (ii), any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition shall be deemed to be cash, so long as the aggregate amount of such Designated Non-Cash Consideration has an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (i) and Section 7.6(h) above at any time, not to exceed $5,000,000, (iii) both immediately prior to and immediately after giving effect to any such sale or other Disposition, no Event of Default shall have occurred, (iv) such sale is made for bona fide business purposes, (v) at least five (5) Business Days prior to the completion of such sale of disposition, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent) and (vi) in no event shall a Disposition made under this Section 7.6(i) be used for sale of all or substantially all of the Borrower’s and its Subsidiaries’ assets (taken as a whole)):
(i)a written notification of such sale or other disposition describing the assets to be sold or disposed of and the proposed closing date thereof; and
(ii)at the request of the Administrative Agent (in its sole discretion), such other additional information as the Administrative Agent shall reasonably request;
(j)so long as the Borrower complies with Section 2.12(c), sales or dispositions of equipment, spectrum usage rights, broadcast licenses or related assets, in each case (i) in connection with any spectrum reallocation resulting from the FCC’s incentive auction of TV broadcast spectrum pursuant to 47 U.S.C. §1452(b)(4)(A), (ii) sold for fair market value and (iii) sold pursuant to bona fide business purposes;
(k)Dispositions of property or assets by the Borrower and/or any Subsidiary, so long as the aggregate fair market value of such Dispositions in any Fiscal Year does not exceed $10,000,000; provided that if this Section 7.6(k) is used for the Bounce Sale or sale of any real property, the proceeds of such sale shall be subject to Section 2.12(c); and
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(l)Dispositions of Securitization Assets or Receivables Assets made in connection with Indebtedness under Section 7.1(p).
Notwithstanding any other provision of this Section 7.6 to the contrary, Equity Interests of a Loan Party may not be sold to a Subsidiary of the Borrower that is not a Loan Party and any Disposition made to a Subsidiary of the Borrower that is not a Loan Party in reliance of this Section 7.6 will be deemed to be an Investment and must be permitted by Section 7.4(k).
Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of their Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on a comparable arm’s-length basis from unrelated third parties and (b) any Restricted Payment permitted by Section 7.5; provided however, this Section 7.7 shall not be deemed to prohibit any of the transactions or relationships with Affiliates contemplated by the agreements listed on Schedule 7.7 or the transactions or relationships with Securitization Subsidiaries in connection with any Qualified Securitization Financing or Receivables Facility.
Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now owned or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to its Equity Interests, to make or repay loans or advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower; provided, that the foregoing shall not apply to prohibitions, restrictions and conditions (i) imposed by law or by this Agreement or any other Loan Document, (ii) customary prohibitions, restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale; provided such prohibitions, restrictions and conditions apply only to the Subsidiary that is sold and such sale is permitted hereunder, (iii) in respect of clause (a) only, imposed by any agreement relating to Indebtedness permitted by this Agreement (A) if, in the case of secured Indebtedness, such prohibitions, restrictions and conditions apply only to the property or assets securing such Indebtedness or (B) such Indebtedness is permitted under Section 7.1(e), 7.1(f), 7.1(k), 7.1(l), or 7.1(m), (iv) in respect of clause (a) only, that are customary provisions in leases and other contracts restricting the assignment thereof; (v) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Qualified Securitization Financing or Receivables Facility; and (vi) contained in any agreement in effect at the time a Person becomes a Subsidiary pursuant to a Permitted Acquisition, so long as such agreement (1) was not entered into solely in contemplation of such Person becoming a Subsidiary, (2) applies only to such Person and (3) does not extend to any other Loan Party. Nothing contained in this Section 7.8 shall be deemed to modify or supersede any term contained in the last paragraph of Section 7.2; it being understood that such paragraph is an independent obligation of the Borrower and is in addition to this Section.
Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any Property used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such Property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred (each, a “Sale/Leaseback Transaction”), except for (a) any Sale/Leaseback Transaction that is made for 100% cash consideration in an amount not less than the fair value of such fixed or capital asset and is consummated within 120 days after the Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset so long as the Borrower applies 100% of the proceeds of such Sale/Leaseback Transaction as required in accordance with Section 2.12(c) without giving effect to the de-minimis threshold set forth therein, and (b) other Sale/Leaseback Transactions if at the time such Sale/Leaseback Transaction is entered into (i) no Default or Event of Default has occurred and is continuing, (ii) such Sale/Leaseback Transaction is made for 100% cash consideration in an amount not less than fair value and (iii) the Borrower applies 100% of such proceeds as required in accordance with Section 2.12(c) without giving effect to the de-minimis threshold set forth therein; provided that, for the avoidance of doubt, the Borrower or any of its Subsidiaries will have a right to reinvest such proceeds in a replacement facility by relying on the Disposition Reinvestment Amount.
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Section 7.10. Business of the Borrower and its Subsidiaries. The Borrower will not, and will not permit any of its Subsidiaries to, engage at any time in any material respect in any business or business activity substantially different from any business or business activity conducted by the Borrower and/or any Subsidiary as of the Closing Date, provided that any businesses, services or activities that are related, complementary, incidental, ancillary or similar to any of the foregoing or are reasonable extensions or developments thereof shall not be deemed to be substantially different.
Section 7.11. Liability Management Transactions. 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.
Section 7.12. Accounting Changes. The Borrower will not, and will not permit any of its Subsidiaries to, make any significant change in accounting treatment or reporting practices, except as required or, so long as the Borrower complies with the requirements set forth in Section 5.1(d), permitted by GAAP, or change the fiscal year of the Borrower or of any of its Subsidiaries, except to change the fiscal year to conform its fiscal year to that of the Borrower.
Section 7.13. Additional Restrictions on Transfers. Notwithstanding any other provision to the contrary, (a) the Borrower shall not, nor shall it permit any Subsidiary to, assign or otherwise 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 Loan Party from its Obligations under the Loan Documents, the transfer of Equity Interests of a Person that owns Material Intellectual Property, or the assignment, or other 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 of the Borrower and its Subsidiaries, 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, hold or exclusively license any Material Intellectual Property or any other material property or material asset of the Borrower and its Subsidiaries at any time and (c) no Loan Party that owns, holds or exclusively licenses 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, assignments, transfers or licenses or transactions made in contravention of this provision shall be void ab initio). To the extent that any ownership of any such Material Intellectual Property or any other material property or material asset vests in, or is granted to, 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 entity shall, as promptly as reasonably practicable, assign ownership of, or exclusively license, as applicable, such Material Intellectual Property or any other material property or material asset to a Loan Party or be designated as a Loan Party; provided that, notwithstanding the foregoing, this Section 7.13 (1) shall not prohibit any Investment made in a Joint Venture in compliance with Section 7.4(e), Section 7.4(k) or Section 7.4(m), and (ii) 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 Receivables Facilities or Qualified Securitization Financing permitted hereunder.
Section 7.14.[Reserved].
Section 7.15. Waivers and Amendments. The Borrower shall not, and shall not permit any Subsidiary to enter into any amendment of, or agree to or accept any waiver with respect to, its Organizational Documents which, individually or taken as a whole, would be materially adverse to the interests of the Lenders. Further, the Borrower shall not, and shall not permit any Subsidiary to, amend or modify, or agree to or accept any waiver with respect to, any of the terms of any Junior Debt of the Borrower or any Subsidiary other than amendments, modifications or waivers, which, individually or taken as a whole and together with any prior amendments, modifications or waivers, would be materially adverse to the interests of the Lenders. For the avoidance of doubt and without limitation, the following non-exhaustive list of actions with respect to any Junior Debt shall be considered materially adverse to the interests of the Lenders for purposes of this Section 7.15: any amendment, modification or other change that (i) includes a financial maintenance covenant, (ii) imposes new or
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additional mandatory prepayment obligations, (iii) shortens the maturity date, brings forward any date upon which any payment is due, adds new payment dates, or otherwise shortens or decreases the weighted average life to maturity, (iv) restricts the payment of any Obligations or otherwise result in a default or event of default as a result of any payment of any Obligations or (v) amends the level of cash interest payments, in each case, except as expressly permitted hereunder.
Section 7.16. Bank Accounts. Without in any way limiting the requirements of Section 5.11, the Borrower will not, and will not permit any Subsidiary Loan Party to, directly or indirectly, open, maintain or otherwise have any checking, savings, deposit, securities or other accounts at any lender or other financial institution where cash or cash equivalents are or may be deposited or maintained with any Person, other than (x) Collateral Related Accounts subject to Control Agreements in accordance with Section 5.11 and (y) the Excluded Accounts; provided that notwithstanding anything herein or in any other Loan Document to the contrary, the Borrower and the Subsidiary Loan Parties shall not be obligated to subject any Excluded Account to a Control Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events (each an “Event of Default”) shall occur:
(a)the Borrower or any other Loan Party shall fail to pay any principal of any Loan or of any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or otherwise; or
(b)the Borrower or any other Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount payable under clause (a) of this Section 8.1) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days; or
(c)any representation or warranty made or deemed made by or on behalf of any Loan Party in writing in or in connection with this Agreement, any other Loan Document (including the Schedules attached to any of the foregoing) and any amendments or modifications hereof or waivers hereunder, or in any certificate, report, financial statement or other document submitted to the Administrative Agent or the Lenders by any Loan Party or any representative of a Loan Party pursuant to or in connection with this Agreement or any other Loan Document shall prove to be incorrect in any material respect when made or deemed made or submitted; or
(d)the Borrower shall fail to observe or perform any covenant or agreement contained in Section 5.1, Section 5.2, Section 5.3, (with respect to the Borrower’s or its Subsidiaries’ existence), Section 5.5, Section 5.7, Section 5.8, Section 5.9, Section 5.11, Section 5.12, Section 5.14, or Articles VI or VII; provided that any Event of Default under the Financial Covenant set forth in Section 6.2 shall not constitute an Event of Default with respect to the Term Loans, the Non-Extended Revolving Commitments or the Non-Extended Revolving Loans, if any, unless the Initial Revolving Loans have been accelerated and the Initial Revolving Commitments have been terminated pursuant to Section 8.2 and any Event of Default under the Financial Covenant set forth in Section 6.1 shall not constitute an Event of Default with respect to the Term Loans, the Initial Revolving Commitments or the Initial Revolving Exposure, if any, unless the Non-Extended Revolving Loans have been accelerated and the Non-Extended Revolving Commitments have been terminated pursuant to Section 8.2; or
(e)any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in clauses (a), (b) and (d) above) or any other Loan Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any Responsible Officer of the Borrower or any Subsidiary of the Borrower becomes aware of such failure, or (ii) notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(f)except pursuant to a valid, binding and enforceable termination or release permitted under the Loan Documents and executed by the Administrative Agent or as otherwise expressly permitted under
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any Loan Document, in the reasonable judgment of the Administrative Agent (i) any provision of any Loan Document shall, at any time after the delivery of such Loan Document, fail to be valid and binding on, or enforceable against, the Loan Party party thereto, (ii) any Loan Party shall seek to terminate any Loan Document, including, without limitation, any Security Document, (iii) any Loan Document purporting to grant a Lien to secure any Obligation shall, at any time after the delivery of such Loan Document, fail to create or maintain a valid and enforceable Lien on the Collateral purported to be covered thereby or such Lien shall fail or cease to be a perfected Lien with the priority required in the relevant Loan Document with respect to the Collateral or (iv) any Loan Party shall state in writing that any of the events described in clauses (i), (ii) or (iii) above shall have occurred; or
(g)the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness that is outstanding, when and as the same shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; or
(h)the Borrower or any Subsidiary other than an Immaterial Subsidiary shall (i) commence a voluntary case or other proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any substantial part of its property, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of this Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee, receiver, liquidator or other similar official for the Borrower or any Subsidiary other than Immaterial Subsidiaries or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or
(i)an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary other than an Immaterial Subsidiary or its debts, or any substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator or other similar official for the Borrower or any Subsidiary other than an Immaterial Subsidiary or for a substantial part of its assets, and in any such case, such proceeding or petition shall remain undismissed for a period of 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(j)the Borrower or any Subsidiary other than an Immaterial Subsidiary shall become unable to pay, shall admit in writing its inability to pay, or shall fail to pay, its debts as they become due; or
(k)the Borrower or any Subsidiary shall receive or have been issued notice of the termination for default or the actual termination for default of any Material Contract which termination could reasonably be expected to have a Material Adverse Effect; or
(l)an ERISA Event shall have occurred that, when taken together with other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(m)any judgment or order for the payment of money in excess of $25,000,000 in the aggregate shall be rendered against the Borrower or any Subsidiary, and either (i) enforcement proceedings which are not subject to a valid stay shall have been commenced by any creditor upon such judgment or
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order or (ii) there shall be a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(n)any non-monetary judgment or order shall be rendered against the Borrower or any Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(o)a Change in Control shall occur or exist; or
(p)(i) the Borrower or any Subsidiary shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of the business of the Borrower or such Subsidiary and such order shall continue in effect for more than thirty (30) days or (ii) any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy or terrorism, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities of the Borrower or such Subsidiary if, as to any of the foregoing, such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect; or
(q)the loss, suspension, termination or revocation of, or failure to renew, any License now held or hereafter acquired by the Borrower or any Subsidiary, or any other action shall be taken by any Governmental Authority in response to any alleged failure by the Borrower or such Subsidiary to be in compliance with Applicable Law if such loss, suspension, termination or revocation or failure to renew or other action, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 8.2. Remedies. If an Event of Default shall have occurred and shall be continuing, in addition to the rights and remedies set forth elsewhere in this Agreement, the other Loan Documents:
(a)With the exception of an Event of Default specified in Section 8.1(h) or Section 8.1(i), the Administrative Agent may in its discretion (unless otherwise instructed by the Required Lenders) or shall at the direction of the Required Lenders (or, in the case of any Event of Default under Section 8.1(d) arising from a breach of the Financial Covenant set forth in Section 6.2, the Majority Initial Revolving Credit Lenders and in the case of any Event of Default under Section 8.1(d) arising from a breach of the Financial Covenant set forth in Section 6.1, the Majority Non-Extended Revolving Credit Lenders), (i) terminate the Commitments and the LC Commitment, or (ii) declare the principal of and interest on the Loans and all other Obligations (including the Prepayment Premiums) to be forthwith due and payable without presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived, anything in this Agreement or in any other Loan Document to the contrary notwithstanding, or both.
(b)Upon the occurrence and continuance of an Event of Default specified in Section 8.1(h) or Section 8.1(i), such principal, interest, and other Obligations (including the Prepayment Premiums) shall thereupon and concurrently therewith become due and payable, and the Commitments and the LC Commitment, shall forthwith terminate, all without any action by the Administrative Agent, any Issuing Bank or any Lender, without presentment, demand, protest, or other notice of any kind, all of which are expressly waived, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.
(c)The Administrative Agent may in its discretion (unless otherwise instructed by the Required Lenders) or shall at the direction of the Required Lenders exercise all of the post-default rights granted to the Administrative Agent, the Issuing Banks and the Lenders, or any of them, under the Loan Documents or under Applicable Law. The Administrative Agent, for the benefit of the Issuing Banks and the Lenders, shall have the right to the appointment of a receiver for the Property of the Loan Parties, and the Borrower hereby consents to such rights and such appointment and hereby waives any objection the Borrower may have thereto or the right to have a bond or other security posted by the Administrative Agent, any Issuing Bank or any Lender, or any of them, in connection therewith.
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(d)In regard to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of any acceleration of the Obligations pursuant to the provisions of this Section 8.2 or, upon the request of the Administrative Agent or the Required Lenders, after the occurrence of an Event of Default and prior to acceleration, the Borrower shall promptly upon demand by the Administrative Agent (or, in the case of an Event of Default under Section 8.1(h) or (i), automatically without demand be required to) deposit in a Letter of Credit Reserve Account opened by the Administrative Agent for the benefit of the Administrative Agent, the Issuing Banks and the Lenders an amount equal to the Minimum Collateral Amount. Amounts held in such Letter of Credit Reserve Account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Secured Obligations in the manner set forth in Section 2.27. Pending the application of such deposit to reimbursement of an LC Disbursement, the Administrative Agent shall, to the extent reasonably practicable, invest such deposit in an interest bearing open account or similar available savings deposit account and all interest accrued thereon shall be held with such deposit as additional security for the Secured Obligations. After all such Letters of Credit shall have expired or been fully drawn upon, all LC Disbursements shall have been reimbursed and otherwise satisfied, and all other Secured Obligations shall have been paid in full, the balance, if any, in such Letter of Credit Reserve Account shall be returned to the Borrower. Except as expressly provided hereinabove, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.
(e)The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder shall be cumulative, and not exclusive.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1. Appointment and Authority of Administrative Agent.
(a)Without limiting Section 9.16, each of the Lenders and the Issuing Banks hereby irrevocably appoints JPMorgan to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither the Borrower nor any Subsidiary shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b)The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacity as a potential Hedge Bank or Cash Management Bank) and each Issuing Bank hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto (including, without limitation, to enter into additional Loan Documents or supplements to existing Loan Documents on behalf of the Secured Parties). In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article IX for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of Articles IX and X (including Section 10.3, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
(c)In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely
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mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing:
(i)the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Issuing Bank or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby;
(ii)where the Administrative Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Loan Document expressed to be governed by the laws of laws of the United States, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of the Administrative Agent to the Secured Parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and
(iii)nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.
Section 9.2. Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 9.3. Exculpatory Provisions.
(a)The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i)shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(ii)shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;
(iii)shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries or Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
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(b)The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.2 and Section 8.2) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank.
(c)The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the Loan Documents or the value or sufficiency of any Collateral or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.
Section 9.4. Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Approved Borrower Portal, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section 9.5. Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility established hereby as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 9.6. Resignation of Administrative Agent.
(a)The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders)
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(the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing Banks directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.3 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
(d)Any resignation by JPMorgan as Administrative Agent pursuant to this Section 9.6 shall also constitute its resignation as an Issuing Bank and the Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank, if in its sole discretion it elects to, and Swingline Lender, (ii) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor Issuing Bank, if in its sole discretion it elects to, shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.
Section 9.7. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Section 9.8. Collateral. The Administrative Agent is hereby authorized to hold all Collateral pledged pursuant to any Loan Document and to act on behalf of the Secured Parties, in its own capacity and through other agents appointed by it, under the Security Documents; provided, that the Administrative Agent shall not agree to the release of any Collateral except in accordance with the terms of this Agreement and the Security Documents (it being understood that the Administrative Agent shall be entitled to rely on a certificate of a Responsible Officer of
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the Borrower, without independent investigation, as to whether any release of Collateral is in accordance with this Agreement and the Security Documents). The Lenders acknowledge that the Loans, the LC Exposure, all other Secured Obligations and all interest, fees and expenses hereunder constitute one Indebtedness, secured by all of the Collateral. The Administrative Agent hereby appoints each Lender, the Swingline Lender, and each Issuing Bank as its agent (and each Lender, Swingline Lender, and Issuing Bank hereby accepts such appointment) for the purpose of perfecting the Administrative Agent’s Liens in assets which, in accordance with the UCC, can be perfected by possession. Should any Lender, Swingline Lender, or Issuing Bank obtain possession of any such Collateral, subject to the limitations set forth in the Control Agreements, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender, Issuing Bank or other Secured Party hereby authorizes and instructs the Administrative Agent to enter into the Non-Disturbance Agreements in connection with any Qualified Securitization Financing.
Section 9.9. Release of Collateral.
(a)Each Lender (including in its or any of its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank), Swingline Lender, and Issuing Bank hereby irrevocably authorize the Administrative Agent, at is option and discretion:
(i)to release any Lien on any Collateral granted to or held by the Administrative Agent, for the benefit of the Secured Parties, under any Loan Document (A) upon the termination of the Revolving Commitments and payment in full in cash of all Secured Obligations (other than (1) contingent indemnification obligations and (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Banks shall have been made), (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents to a Person that is not a Loan Party, (C) if approved, authorized or ratified in writing in accordance with Section 10.2, (D) to the extent such asset constitutes an Excluded Property or (E) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under the Subsidiary Guaranty Agreement pursuant to clause (iii) below;
(ii)to subordinate any Lien on any Collateral granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien permitted pursuant to Section 7.2(b); or
(iii)to release any Guarantor from its obligations under any Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents; provided that notwithstanding the foregoing or anything in this Agreement to the contrary, no Guarantor shall be released from its Guarantee obligations under the Loan Documents unless and until the following conditions are satisfied: (1) no Default or Event of Default shall have occurred and be continuing, (2) the primary purpose of the transaction resulting in such Person ceasing to be a Subsidiary 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 or otherwise cause the release of the obligations under the Guaranty Agreement, (3) at the time of such release (after giving effect thereto), all outstanding Indebtedness of, and Investments in, such Guarantor would then be permitted to be made under and in accordance with Section 7.1 and Section 7.4, as applicable, (without relying on capacity provided for in Section 7.4(d)) and (4) such Subsidiary shall not be (or shall be simultaneously released as) a guarantor of any other Indebtedness for borrowed money.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Subsidiary Guaranty Agreement pursuant to this Section 9.9. In each case as specified in this Section 9.9, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Subsidiary Guaranty Agreement, in each case in accordance with the terms of the Loan Documents and this Section 9.9; provided, that, the Administrative Agent may condition such documents on receipt of a certificate of a Responsible Officer of the Borrower certifying that the transactions related to such release or subordination are permitted under the Loan Documents (including with respect to applicable release and/or subordination conditions). All such
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documents shall be without recourse to, or representation and warranty by, the Administrative Agent. In the case of any such sale, transfer or disposal of any property constituting Collateral in a transaction constituting a Disposition permitted pursuant to Section 7.6 to a Person that is not a Loan Party, the Liens created by any of the Security Documents on such property shall be automatically released without need for further action by any Person.
(b)Each Lender, the Swingline Lender, and Issuing Bank hereby directs the Administrative Agent, at the sole cost and expense of the Borrower, to execute and deliver or file or authorize the filing of such termination, partial release statements, mortgage releases or other instruments evidencing release of a Lien, and do such other things as are necessary to release Liens to be released pursuant to this Section 9.9 promptly upon the effectiveness of any such release. Upon request by the Administrative Agent at any time, the Lenders, the Swingline Lenders, and the Issuing Banks will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 9.9.
(c)The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to any Secured Party for any failure to monitor or maintain any portion of the Collateral.
Section 9.10. No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the syndication agents, documentation agents, co-agents, co-managers, lead arrangers or bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder.
Section 9.11.[Reserved].
Section 9.12. Administrative Agent May File Proofs of Claim.
(a)In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower or any other Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or any Revolving Credit Exposure shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower or any other Loan Party) shall be entitled and empowered (but not obligated), by intervention in such proceeding or otherwise:
(i)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or Revolving Credit Exposure and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks, the Swingline Lender and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks, the Swingline Lender and the Administrative Agent and its agents and counsel and all other amounts due the Lenders, the Issuing Banks, the Swingline Lender and the Administrative Agent under Section 10.3) allowed in such judicial proceeding; and
(ii)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and
(b)Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender, Swingline Lender and Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Swingline Lender and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 10.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender, Swingline Lender or Issuing Bank any plan of reorganization, arrangement,
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adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.13. Right to Realize on Collateral and Enforce Guarantee; Credit Bidding.
(a)Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent and each Lender hereby agree that no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Security Documents, it being understood and agreed that all powers, rights and remedies hereunder and under the Security Documents may be exercised solely by the Administrative Agent; provided, that the foregoing shall not prohibit the exercise of setoff rights pursuant to, and in accordance with, Section 10.7. Without limiting the foregoing, each Lender hereby agrees that, except with the written consent of the Administrative Agent and the Required Lenders, it will not take any enforcement action, accelerate obligations under any Loan Documents, or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral; provided that nothing in this Agreement or any other Loan Document shall impair or affect 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 Latest Maturity Date or Revolving Commitment Termination Date applicable thereto, without the consent of such Lender.
(b)The Administrative Agent, on behalf of itself and the Lenders, shall have the right to credit bid and purchase for the benefit of the Administrative Agent and the Lenders all or any portion of Collateral at any sale thereof conducted by the Administrative Agent under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, at any sale thereof conducted under the provisions of the United States Bankruptcy Code, including Section 363 thereof, or a sale under a plan of reorganization, or at any other sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with Applicable Law.
Section 9.14. Secured Hedge Agreements and Secured Cash Management Agreements. No Cash Management Bank or Hedge Bank that obtains the benefits of Section 2.27 or any Collateral by virtue of the provisions hereof or of any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Secured Cash Management Agreements and Secured Hedge Agreements, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
Section 9.15. Authorization to Execute Other Loan Documents; Intercreditor Agreements. Each Secured Party hereby authorizes the Administrative Agent to execute on behalf of all Secured Parties all Loan Documents (including, without limitation, the Security Documents, the First Lien Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any other subordination agreements). In addition, each Secured Party hereby authorized the Administrative Agent to, without any further consent of any Secured Party, enter into any intercreditor agreement or other intercreditor arrangements contemplated by this Agreement. In the event of any inconsistency between the provisions of this Agreement and the First Lien Intercreditor Agreement or any other intercreditor agreement or other intercreditor arrangement contemplated by this Agreement, the provisions of the First Lien Intercreditor Agreement or such other intercreditor agreement or intercreditor arrangement shall govern and control.
Section 9.16. Acknowledgement of Lenders and Issuing Banks
(a)Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) it has, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender or an Issuing Bank, and to make, acquire or hold Loans hereunder and (iii) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person
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exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)Each Lender and each Issuing Bank, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment and Acceptance or any other Loan Document pursuant to which it shall become a Lender or an Issuing Bank hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent, the Lenders or the Issuing Banks on the Closing Date.
(c) (i) Each Lender and each Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender or such Issuing Bank that the Administrative Agent has determined in its sole discretion that any funds received by such Lender or such Issuing Bank from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender or such Issuing Bank (whether or not known to such Lender or such Issuing Bank, as applicable), and demands the return of such Payment (or a portion thereof), such Lender or such Issuing Bank shall promptly, but in no event later than one (1) Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, agree in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender or such Issuing Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or such Issuing Bank shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender or any Issuing Bank under this Section 9.16(c) shall be conclusive, absent manifest error.
(ii)Each Lender and each Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or such Issuing Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one (1) Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender or such Issuing Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii)The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender or any Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or such Issuing Bank with respect to such amount and (y) an erroneous Payment shall not
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pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Party intended to pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party.
(iv)Each party’s obligations under this Section 9.16(c) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or an Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
(d)The Lenders and Issuing Banks acknowledge that there may be a constant flow of information (including information which may be subject to confidentiality obligations in favor of the Loan Parties) between the Loan Parties and their Affiliates, on the one hand, and JPMorgan Chase Bank, N.A. and its Affiliates, on the other hand. Without limiting the foregoing, the Credit Parties or their Affiliates may provide information, including updates to previously provided information to JPMorgan Chase Bank, N.A. and/or its Affiliates acting in different capacities, including as a Lender or an Issuing Bank, lead bank, arranger or potential securities investor, independent of such entity’s role as administrative agent hereunder. The Lenders and Issuing Banks acknowledge that neither JPMorgan Chase Bank, N.A. nor its Affiliates shall be under any obligation to provide any of the foregoing information to them. Notwithstanding anything to the contrary set forth herein or in any other Loan Document, except for notices, reports and other documents expressly required to be furnished to the Lenders or the Issuing Banks by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide, and shall not be liable for the failure to provide, any Lender or any Issuing Bank, as applicable, with any credit or other information concerning the Loans, the Lenders, the Issuing Banks, the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates that is communicated to, obtained by, or in the possession of, the Administrative Agent or any of its Affiliates in any capacity, including any information obtained by the Administrative Agent in the course of communications among the Administrative Agent and any Loan Party, any Affiliate thereof or any other Person. Notwithstanding the foregoing, subject to any confidentiality provisions in agreements between any Loan Party and the Administrative Agent, any such information may (but shall not be required to) be shared by the Administrative Agent with one or more Lenders or one or more Issuing Banks, or any formal or informal committee or ad hoc group of such Lenders or such Issuing Banks, as applicable, including at the direction of a Loan Party.
Section 9.17. Borrower Communications
(a)The Administrative Agent, the Lenders and the Issuing Banks agree that the Borrower may, but shall not be obligated to, make any Borrower Communications to the Administrative Agent through an electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Borrower Portal”).
(b)Although the Approved Borrower Portal and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system), each of the Lenders, each of the Issuing Banks and the Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of the Borrower that are added to the Approved Borrower Portal, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower hereby approves distribution of Borrower Communications through the Approved Borrower Portal and understands and assumes the risks of such distribution.
(c)THE APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER COMMUNICATION, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED BORROWER PORTAL AND THE BORROWER COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
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APPLICABLE PARTIES IN CONNECTION WITH THE BORROWER COMMUNICATIONS OR THE APPROVED BORROWER PORTAL. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, THE ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED BORROWER PORTAL.
(d)Each of the Lenders, each of the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Borrower Communications on the Approved Borrower Portal in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(e)Nothing herein shall prejudice the right of the Borrower to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices.
(a)Except in the case of notices and other communications expressly permitted to be given by electronic transmission, Approved Borrower Portal or Platform in accordance with subsection (c) of this Section 10.1, all notices and other communications to any party herein to be effective shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or e-mail, as follows:
To the Borrower: The E.W. Scripps Company
312 Walnut Street
Cincinnati, Ohio 45202
Attention: Jason Combs, Chief Financial Officer
Email: jason.combs@scripps.com
With copies to: The E.W. Scripps Company
312 Walnut Street
Cincinnati, Ohio 45202
Attention: Robert Oestreicher, Senior Vice President, Corporate Counsel and Corporate Secretary
Email: Robert.Oestreicher@scripps.com
and
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: William B. Sheehan
Email: wsheehan@stblaw.com
If to JPMorgan as Administrative Agent from the Borrower, to the address or addresses separately provided to the Borrower.
If to any Issuing Bank, at the address separately provided to the Borrower.
If to the Swingline Lender, at the address separately provided to the Borrower.
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To any Lender: the address set forth in the Administrative Questionnaire or the Assignment and Acceptance executed by such Lender
To any Lender: the address set forth in the Administrative Questionnaire or the Assignment and Acceptance executed by such Lender
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall, when transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited into the mail or if delivered, upon delivery; provided, that notices delivered to the Administrative Agent, the Issuing Banks or the Swingline Lender shall not be effective until actually received by such Person at its address specified in this Section 10.1.
(b)Any agreement of the Administrative Agent, any Issuing Bank or any Lender herein to receive certain notices by facsimile or other electronic transmission is solely for the convenience and at the request of the Borrower. The Administrative Agent, each Issuing Bank and each Lender shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Borrower to give such notice and the Administrative Agent, any Issuing Bank or any Lender shall not have any liability to the Borrower or other Person on account of any action taken or not taken by the Administrative Agent, the Issuing Banks and the Lenders in reliance upon such facsimile notice. The obligation of the Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any way or to any extent by any failure of the Administrative Agent, any Issuing Bank or any Lender to receive written confirmation of any facsimile notice or the receipt by the Administrative Agent, any Issuing Bank or any Lender of a confirmation which is at variance with the terms understood by the Administrative Agent, such Issuing Bank and such Lender to be contained in any such facsimile notice.
(c)Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered or furnished by electronic communication (including by e-mail to the e-mail addresses provided in subsection (a) of this Section 10.1 and an Approved Borrower Portal or Platform, if arrangements for such transmission have been approved by the Administrative Agent) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II unless such Lender or Issuing Bank, as applicable, and the Administrative Agent have agreed to receive notices under any Section thereof by electronic communication (including an Approved Borrower Portal) and have agreed to the procedures governing such communications. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications (including an Approved Borrower Portal) pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (x) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (y) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (x) of notification that such notice or communication is available and identifying the website address therefor.
(d)The Borrower acknowledges and agrees that the DQ List shall be deemed suitable for posting and may be posted by the Administrative Agent on a Platform or another similar electronic system used by the Administrative Agent for posting of notices and other information to the Lenders.
Section 10.2. Waiver; Amendments.
(a)No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan
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Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 10.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the Required Lenders or the Borrower and the Administrative Agent with the consent of the Required Lenders and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment, waiver or consent shall:
(i)increase the Commitment of any Lender without the written consent of such Lender (it being understood and agreed that a waiver of any Default or Event of Default or modification of any of the defined terms contained herein (other than those defined terms specifically addressed in this Section 10.2(b)) shall not constitute a change in the terms of the Commitment of any Lender);
(ii)reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby (it being understood and agreed that a waiver of Default Interest or any change to the definition of Senior Secured Net Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest or fees, as applicable);
(iii)other than with respect to mandatory repayments under Section 2.12, (A) postpone the date fixed for any payment of principal, interest, premiums, fees or any other amount (including by making any payment payable in kind, which shall be deemed to be a postponement of the date fixed for payment) on any Loan or LC Disbursement or any other fees hereunder, (B) reduce the amount of, waive or excuse any such payment, or postpone or have the effect of postponing the scheduled date for the termination or reduction of any Commitment, (C) change or have the effect of changing, the type or currency of any payment or (D) 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 thereon for more than 10 Business Days (except that any such 10 Business Day period shall not apply to the payment of principal), in each case, without the written consent of each Lender directly affected thereby;
(iv)change Section 2.8(b), 2.8(c), or 2.21(c), or any other provision of this Agreement requiring the pro rata treatment of the applicable Lenders in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender (except such changes as may be necessary to incorporate the addition of New Term Loan Commitments or New Revolving Commitments (or New Loans made with respect thereto) pursuant to Section 2.24);
(v)(i) change any of the provisions of this Section 10.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender (except such changes as may be necessary to incorporate the addition of New Term Loan Commitments or New Revolving Commitments (or New Loans made with respect thereto) pursuant to Section 2.24) or (ii) change any of the provisions of this Section 10.2 or the definition of “Majority Initial Revolving Credit Lenders” or any other provision hereof specifying the number or percentage of Initial Revolving Credit Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Initial Revolving Credit Lender (except such changes as may be necessary to incorporate the addition of New Term Loan Commitments or New Revolving Commitments (or New Loans made with respect thereto) pursuant to Section 2.24);
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(vi)release all or a material portion of the value of the Guarantees made by the Guarantors or limit the liability of all or a material portion of the Guarantors under any guaranty agreement, without the written consent of each Lender;
(vii)permit or allow any sale or release of all or a material portion of the Collateral securing the Obligations;
(viii)change any of the provisions of Section 2.27 or any other similar provision of this Agreement or any other Loan Document governing the application of the proceeds of the Collateral, without the written consent of each Lender;
(ix)adversely affect the rights of (1) the Initial Revolving Credit Lenders to an extent greater than any of the other Lenders without the prior written consent of the Majority Initial Revolving Credit Lenders (including, without limitation, waiver of, or amendment to, any condition to funding set forth in Section 3.2 hereof) or (2) the Non-Extended Revolving Credit Lenders to an extent greater than any of the other Lenders without the prior written consent of the Majority Non-Extended Revolving Credit Lenders (including, without limitation, waiver of, or amendment to, any condition to funding set forth in Section 3.2 hereof);
(x)adversely affect the rights of (1) the Tranche B-2 Term Loan Lenders to an extent greater than any of the other Lenders without the prior written consent of the Majority Tranche B-2 Term Loan Lenders or (2) the Tranche B-3 Term Loan Lenders to an extent greater than any of the other Lenders without the prior written consent of the Majority Tranche B-3 Term Loan Lenders;
(xi)change Section 2.12(g) without the written consent of each Term Lender directly and adversely affected by such change;
(xii)change Section 2.28(a) with respect to the requirement to provide such Extension Offer to the applicable existing Lenders on a pro rata basis, or change Section 2.29 with respect to the requirement to provide such prepayment offer to the applicable existing Lenders on a pro rata basis, in each case, without the written consent of each Lender directly and adversely affected by such change;
(xiii)change Section 9.13(a) with respect to 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 Latest Maturity Date or Revolving Commitment Termination Date applicable thereto, without the written consent of each Lender directly affected thereby;
(xiv)amend the Aggregate Subsidiary Threshold without the written consent of all Lenders;
(xv)allow the incurrence and/or reduction of Obligations or Commitments hereunder for the purpose to influence Lender voting without the written consent of each Lender directly affected thereby;
(xvi)without the written consent of each Lender directly and adversely affected thereby, no amendment, supplement, waiver or modification shall (a) subordinate or have the direct or indirect effect of subordinating (either through an amendment or series of amendments to this Agreement or through the establishment of intercreditor, subordination or similar agreement(s) or arrangement(s) or otherwise) the Obligations in respect of the Loans in right of payment to any other Indebtedness or other obligations or (b) subordinate or have the direct or indirect effect of subordinating (either through an amendment or series of amendments to this Agreement or through the establishment of intercreditor, subordination or similar agreement(s) or arrangement(s) or otherwise) all or a material portion of the Liens on the Collateral securing the Obligations in respect of the Loans to the Liens on the Collateral securing any other Indebtedness or other obligations (any such Indebtedness to which such Liens securing any of such Obligations or such Obligations, as applicable, are subordinated, “Senior Indebtedness”), except, in the case of each of clause (a) and (b) above, (I) in connection with a “debtor in possession” financing (or any similar financing arrangement in an insolvency proceeding in a non-United States jurisdiction) that is offered to all of the Lenders at the same time and on the same terms and conditions on a pro rata (inclusive of unfunded commitments) basis (after giving effect to any pro rata reductions of commitments as part of the underlying applicable transactions), including any consent fee, backstop fee and any other economics and any structural
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and other protections to be included as part of the “debtor in possession” financing, in which case only the consent of the Required Lenders shall be required for any such subordination described in this sub-clause (I), or (II) pursuant to a transaction in which participation in such Senior Indebtedness is offered to all of the Lenders at the same time and on the same terms and conditions on a pro rata (inclusive of unfunded commitments) basis (after giving effect to any pro rata reductions of commitments as part of the underlying applicable transactions), including any consent fee, backstop fee and any other economics and any structural and other protections to be included as part of the Senior Indebtedness (but excluding any bona fide backstop fees that are market and incurred in good faith), in which case only the written consent of the Supermajority Required Lenders and the Majority Initial Revolving Credit Lenders shall be required for any such transaction described in this sub-clause (II);
(xvii)amend any of the following Sections or defined terms or make any of the following changes, as applicable, without the written consent of each Lender: (A) change clause (vi) of the definition of “Incremental Incurrence Conditions,” Section 2.24(e)(x), the last paragraph of Section 7.1 or any other provision of this Agreement prohibiting the incurrence of Indebtedness for the purpose of influencing Lender voting, (B) last paragraph of Section 7.1 and the definition of “Double-Dip Protection”, (C) Section 7.11 and the definition of “Liability Management Transaction”, and the application of the term “Liability Management Transaction” in the Loan Documents, (D) Section 7.13, (E) Section 9.9(a)(iii), (F) Section 10.4(b)(v), (G) 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 of this Agreement or (H) Section 10.2(b)(xv); provided that notwithstanding the foregoing, if any of the applicable foregoing amendments or changes are made pursuant to a transaction in which participation is offered to all Lenders at the same time and on the same terms and conditions on a pro rata (inclusive of unfunded commitments) basis (after giving effect to any pro rata reductions of commitments as part of the underlying applicable transactions), including any consent fee, backstop fee and any other economics and any structural and other protections to be included as part of such transaction (but excluding any bona fide backstop fees that are market and incurred in good faith), the written consent of the Supermajority Required Lenders and the Majority Initial Revolving Credit Lenders shall only be required for any such amendment or change described in this clause (xvii);
(xviii)amend (a) the perfection requirements under this Agreement or the Security Agreement, (b) the definition of Excluded Property, or (c) the requirement to obtain Control Agreement under Section 5.11, in each case without written consent of the Supermajority Required Lenders and Majority Initial Revolving Credit Lenders;
(xix)permit any Loan Party or any of its Subsidiaries or Affiliates, to enter into any transaction, agreement, waiver, amendment or modification to this Agreement or any Loan Document that authorizes additional Indebtedness or reduction in Commitments for the purpose of obtaining consent to any transaction pursuant to any voting threshold required under this Agreement, unless consented to by each Lender directly and adversely affected thereby; and
(xx)amend, modify or waive any defined term that is applicable to any of the provisions in this Section 10.2 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, without the written consent of the requisite Lenders required by the applicable clauses (b)(i) through (xix) above; provided that notwithstanding the foregoing, if any of the applicable foregoing amendments or changes are made pursuant to a transaction in which participation is offered to all of the Lenders at the same time and on the same terms and conditions on a pro rata (inclusive of unfunded commitments) basis (after giving effect to any pro rata reductions of commitments as part of the underlying applicable transactions), including any consent fee, backstop fee and any other economics and any structural and other protections to be included as part of such transaction (but excluding any bona fide backstop fees that are market and incurred in good faith), the written consent of the Supermajority Required Lenders and the Majority Initial Revolving Credit Lenders shall only be required for any such amendment or change described in this clause (xx);
(c)In addition to the requirements set forth in this Section 10.2, (i) no amendment or waiver of any of the Protected Revolver Terms or any other amendment, modification or waiver the effect of which would be to amend, modify or waive any Protected Revolver Terms, nor consent to any departure by the Borrower therefrom, shall in any event be effective without the prior written approval of the Majority Initial Revolving Credit Lenders, (ii) no amendment or waiver of any provisions of the First Lien Intercreditor Agreement, any Junior Lien
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Intercreditor Agreement or any other intercreditor or subordination agreement entered into in connection with the Liens securing the Obligations shall be effective without the prior written approval of the Majority Initial Revolving Credit Lenders, (iii) no amendment, waiver or other modification of Section 10.4(l) shall be effected without the prior written approval of each affected Initial Revolving Credit Lender; and (iv) only the Majority Initial Revolving Credit Lenders shall be permitted to waive any condition to any Borrowing of Initial Revolving Loans including, for the avoidance of doubt, the waiver of any Default or Event of Default with respect to any Borrowing of Initial Revolving Loans, and notwithstanding anything herein to the contrary, amend any applicable grace period relating to, any payment of principal of, or interest on the Revolving Loans.
(d)No agreement shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent without the prior written consent of such Person. Any amendment, modification, waiver, consent, termination or release of any Hedge Agreements or Cash Management Agreements may be effected by the parties thereto without the consent of the Administrative Agent or any other Lender. Notwithstanding the foregoing or anything to the contrary contained in this Agreement (w) changes to the definition of “LC Commitment” shall require the approval of the Majority Initial Revolving Credit Lenders only, (x) (1) amendments, waivers or modifications of the Financial Covenant set forth in Section 6.2 or Section 8.1(d) in respect of any breach of Section 6.2 (or the component financial definitions as they apply to the Financial Covenant set forth in Section 6.2) shall require the approval of the Majority Initial Revolving Credit Lenders only and (2) amendments, waivers or modifications of the Financial Covenant set forth in Section 6.1 or Section 8.1(d) in respect of any breach of Section 6.1 (or the component financial definitions as they apply to the Financial Covenant set forth in Section 6.1) shall require the approval of the Majority Non-Extended Revolving Credit Lenders only, (y) subject to the limitations set forth in this Agreement, this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Section 2.18, Section 2.19, Section 2.20 and Section 10.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement and (z) any Event of Default occurring hereunder shall continue to exist (and shall be deemed to be continuing) until such time as such Event of Default is waived in writing in accordance with the terms of this Section notwithstanding (i) any attempted cure or other action taken by the Borrower or any other Person subsequent to the occurrence of such Event of Default or (ii) any action taken or omitted to be taken by the Administrative Agent or any Lender prior to or subsequent to the occurrence of such Event of Default (other than the granting of a waiver in writing in accordance with the terms of this Section 10.2. For the avoidance of doubt, the Required Lenders are not entitled to waive any Default or Event of Default arising out of a transaction that requires a Loan Party to obtain the consent of the Majority Initial Revolving Credit Lenders without obtaining such consent. Any such waiver without obtaining the consent of the Majority Initial Revolving Credit Lenders shall be deemed void ab initio. In addition, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error, omission or defect of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision.
Notwithstanding anything herein to the contrary, any waiver, amendment, consent or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) 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 Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders under this Agreement at the time.
Section 10.3. Expenses; Indemnification; Limitation of Liability.
(a)The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the Administrative Agent, the Lead Arrangers, the Co-Managers and their Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent and its Affiliates, the preparation and administration of the Loan Documents and any amendments, modifications or waivers thereof (whether or not the transactions contemplated in this Agreement or any other Loan Document shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing Banks in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (iii) all out-of-pocket costs and expenses of the Administrative Agent in connection with permitted visits, inspections and/or examinations under Section 5.7, and all out-of-pocket costs and expenses for each permitted visit, inspection and/or examination of the Borrower and its
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Subsidiaries performed by personnel employed by the Administrative Agent for no more than two such visits, inspections and/or examinations unless an Event of Default is continuing and (iv) all out-of-pocket costs and expenses (including, without limitation, the reasonable fees, charges and disbursements of outside counsel and the allocated cost of inside counsel) incurred by the Administrative Agent, any Issuing Bank or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.3, or in connection with the Loans made or any Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, but limited to one counsel for all Lenders, the Administrative Agent and the Issuing Banks (or, solely in the case of an actual conflict of interest, one additional counsel for each affected Persons taken as a whole), and, if necessary, of one local counsel for all Lenders, the Administrative Agent and the Issuing Banks in each applicable jurisdiction (which may include a single special counsel acting in multiple jurisdictions for all Lenders, the Administrative Agent and the Issuing Banks), and, solely in the case of an actual conflict of interest, one additional counsel in each applicable material jurisdiction to the affected Persons.
(b)The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the Lead Arrangers, the Co-Managers, each Lender (including the Fronting Lender), Swingline Lender and Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, penalties and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all reasonable fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Transaction Document, any Hedge Agreement, Cash Management Agreements, the Transaction Support Agreement and the Revolving Commitment Letter or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) the use by any Person of any information or materials obtained by or through a Platform or another similar electronic system or other internet web sites, (iv) any actual or alleged presence or Release of Hazardous Substances on or from any property owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related to the Borrower or any Subsidiary, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including any of the Transactions), whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) in the case of the Administrative Agent or any Lender, any unexcused breach by the Administrative Agent or such Lender of any of its material obligations under this Agreement.
(c)[Reserved].
(d)To the extent that the Borrower fails to pay any amount required to be paid to the Administrative Agent, the Issuing Banks or the Swingline Lender under clause (a), (b) or (c) hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, any Issuing Bank or the Swingline Lender in its capacity as such.
(e)To the extent permitted by Applicable Law, the Borrower shall not assert, and hereby waives, any claim against the Administrative Agent (and any sub-agent thereof), any Lead Arranger, any Co-Managers, any Lender (including the Fronting Lender), the Swingline Lender and any Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called a “Lender-Related Person”), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to actual or direct damages) arising out of, in connection with or as a result of, this Agreement, any other Loan Document or any agreement or instrument
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contemplated hereby or thereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of proceeds thereof. No Lender-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except for any damages resulting from the Lender-Related Person’s gross negligence or willful misconduct.
(f)All amounts due under this Section 10.3 shall be payable promptly after written demand therefor.
Section 10.4. Successors and Assigns.
(a)The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section 10.4, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section 10.4 or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section 10.4 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section 10.4 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its applicable Revolving Commitment, Loans and other Revolving Credit Exposure at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)Minimum Amounts.
(A)in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitments and the Loans at the time owing to it or in the case of an assignment to a Lender, a Lender Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B)in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the any Commitment (which for this purpose includes Loans and Revolving Credit Exposure outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans and, to the extent applicable, Revolving Credit Exposure of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) shall not be less than $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, that the Borrower shall be deemed to have consented to any such lower amount unless the Borrower shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof; provided, further, that any such assignment shall be aggregated amongst Affiliates and Approved funds for the purpose of determining if the Minimum Transfer Amount is met.
(ii)Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans, Revolving Credit Exposure or the Commitments assigned; provided that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Commitments on a non-pro rata basis.
(iii)Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section 10.4 and, in addition:
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(A)the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, (y) such assignment is to a Lender, a Lender Affiliate of a Lender or an Approved Fund or (z) such assignment is made in connection with the primary syndication of the Commitments and Loans; provided that the Borrower shall be deemed to have consented to such assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof;
(B)the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required unless such assignment is of a Term Loan to a Lender, an Affiliate of such Lender or an Approved Fund of such Lender; and
(C)the consent of the applicable Issuing Banks (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit issued by such Issuing Bank (whether or not then outstanding), and the consent of the Swingline Lender (such consent not to be unreasonably withheld or delayed) and each Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of Initial Revolving Credit Commitments;
provided that notwithstanding anything to the contrary herein or in any other Loan Document, that certain Master Consent to Assignment, dated as of the Closing Date and signed by the Administrative Agent, the Fronting Lender and the Borrower, shall govern assignments by the Fronting Lender pursuant to the Fronting Arrangement.
(iv)Assignment and Acceptance. The parties to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement platform, or manually if previously confirmed, together with a processing and recordation fee of $3,500 unless waived in the sole discretion of the Administrative Agent, (B) deliver an Administrative Questionnaire unless the assignee is already a Lender and (C) deliver the documents required under Section 2.20(g).
(v)No Assignment to the Borrower; Defaulting Lenders. No such assignment shall be made to (A) the Borrower or any Affiliates or Subsidiaries of the Borrower or (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi)No Assignment to Natural Persons. No such assignment shall be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).
(vii)Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Banks, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans and participations in Letters of Credit and Swingline Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section 10.4, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the
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rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 2.18, Section 2.19, Section 2.20 and Section 10.3 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section 10.4.
(c)The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York, New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Revolving Commitments of, and principal amount (and stated interest) of the Loans and Revolving Credit Exposure owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding any notice to the contrary. Information contained in the Register with respect to any Lender shall be available for inspection by any Lender (with respect to its own interests only) at any reasonable time and from time to time upon reasonable prior notice; information contained in the Register shall also be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. In establishing and maintaining the Register, the Administrative Agent shall serve as the Borrower’s agent solely for tax purposes and solely with respect to the actions described in this Section 10.4. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register.
(d)Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, the Swingline Lender or the Issuing Banks sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person), the Borrower or any Affiliates or Subsidiaries of the Borrower) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders, the Issuing Banks and the Swingline Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
(e)Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to the following to the extent affecting such Participant: (i) increase the Revolving Commitment subject to such participation without the written consent of the Participant, (ii) reduce the principal amount of any Loan or LC Disbursement subject to such participation or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of any Participant directly affected thereby, (iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Revolving Commitment subject to such participation, without the written consent of each Participant directly affected thereby, (iv) release any Guarantor or limit the liability of any such Guarantor under any guaranty agreement except in accordance with the terms hereof, or (v) release all or substantially all collateral securing any of the Obligations. Subject to paragraph (f) of this Section 10.4, the Borrower agrees that each Participant shall be entitled to the benefits of Section 2.18, Section 2.19 and Section 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(g) (it being understood that the documentation required under Section 2.20(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 10.4. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7 as though it were a Lender; provided such Participant agrees to be subject to Section 2.18 as though it were a Lender.
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Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. The Borrower and the Administrative Agent shall have inspection rights to such Participant Register (upon reasonable prior notice to the applicable Lender) solely to the extent necessary to demonstrate that such Loans or other obligations under the Loan Documents are in “registered form” under Treasury Regulation Section 5f.103-1(c).
(f)A Participant shall not be entitled to receive any greater payment under Section 2.18 and Section 2.20 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such greater entitlement results from a Change in Law after the date on which such participation is acquired.
(g)Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) No assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a notice pursuant to Section 5.1(e)), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrower of an Assignment and Acceptance with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment in violation of this clause (h)(i) shall not be void, but the other provisions of this clause (h) shall apply.
(i)If any assignment or participation is made to any Disqualified Institution without the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any Revolving Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such Disqualified Institution in connection with such Revolving Commitment, (B) in the case of outstanding Term Loans held by Disqualified Institutions, purchase or prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (C) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 10.4), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(j)Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (a “Plan”), each Disqualified Institution party hereto hereby agrees (1) not to vote on such Plan, (2) if such Disqualified Institution does vote on such Plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or
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any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(k)The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the DQ List and any updates thereto from time to time through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”) or another similar electronic system, including that portion of such system that is designated for “public side” Lenders and/or (B) provide the DQ List to each Lender requesting the same.
(l)At any time during the term of this Agreement, without the consent of the Borrower, the Administrative Agent, any other Lender, any Issuing Bank or any other party hereto, upon irrevocable written notice delivered to the Administrative Agent by the Majority Term Loan Lenders, the consenting Term Loan Lenders of such Class, individually and collectively, shall have the right to purchase in cash all, and not less than all, funded Initial Revolving Loans together with assumption of all unfunded Initial Revolving Commitments, at par, so long as such Term Loan Lenders (i) pay all accrued and unpaid interest, all accrued and unpaid fees (including Revolving LC Participation Fees), and all outstanding principal amount for such Initial Revolving Loans, in each case, at par and in cash and (ii) cash collateralize all outstanding Letters of Credit in an amount of at least the Minimum Collateral Amount for each such Letter of Credit (the purchase right described herein, the “Revolving Facility Purchase Option”). The applicable Term Loan Lenders shall be required to complete the Revolving Facility Purchase Option not later than 20 Business Days following delivery of the irrevocable notice to exercise such Revolving Facility Purchase Option pursuant to documentation reasonably satisfactory to the Administrative Agent, the participating Term Loan Lenders and the Initial Revolving Credit Lenders. Automatically upon the consummation of the Revolving Facility Purchase Option, JPMorgan shall no longer be the Swingline Lender and it and each other Initial Revolving Credit Lender shall be discharged from all of their respective duties and obligations as Swingline Lender or Issuing Bank hereunder or under the other Loan Documents.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.
(a)This Agreement and the other Loan Documents shall be construed in accordance with and be governed by the law (without giving effect to the conflict of law principles thereof) of the State of New York.
(b)The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court of the Southern District of New York and of any state court of the State of New York, in each case, located in the city of New York, Borough of Manhattan and any appellate court from any thereof, in any action or proceeding (whether in tort, law or in equity) arising out of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York state court or, to the extent permitted by Applicable Law, such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, any Issuing Bank or Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
(c)The Borrower irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph (b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d)Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
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Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, each Lender and Issuing Bank shall have the right, at any time or from time to time upon the occurrence and during the continuance of an Event of Default, without prior notice to the Borrower or any other Loan Party, any such notice being expressly waived by the Borrower to the extent permitted by Applicable Law, to set off and apply against all deposits (general or special, time or demand, provisional or final) of the Borrower or any other Loan Party at any time held or other obligations at any time owing by such Lender and Issuing Bank to or for the credit or the account of the Borrower against any and all Secured Obligations held by such Lender or Issuing Bank, as the case may be, irrespective of whether such Lender or Issuing Bank shall have made demand hereunder and although such Secured Obligations may be unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.23 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender and Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such set-off and any application made by such Lender and Issuing Bank, as the case may be; provided, that the failure to give such notice shall not affect the validity of such set-off and application. Each Lender and Issuing Bank agrees to apply all amounts collected from any such set-off to the Secured Obligations before applying such amounts to any other Indebtedness or other obligations owed by the Borrower and any Subsidiaries to such Lender or Issuing Bank.
Section 10.8. Counterparts; Integration. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Agreement, the other Loan Documents, and any separate letter agreement(s) relating to any fees payable to the Administrative Agent with respect to the facilities set forth herein constitute the entire agreement among the parties hereto and thereto regarding the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, regarding such subject matters. Delivery of an executed counterpart to this Agreement or any other Loan Document by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of an original executed counterpart hereof.
Section 10.9. Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Revolving Commitments have not expired or terminated. The provisions of Section 2.18, Section 2.19, Section 2.20 and Section 10.3 and Article IX shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof. All representations and warranties made herein, in the certificates, reports, notices, and other documents delivered pursuant to this Agreement shall survive the execution
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and delivery of this Agreement and the other Loan Documents, and the making of the Loans and the issuance of the Letters of Credit.
Section 10.10. Severability. Any provision of this Agreement or any other Loan Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to take normal and reasonable precautions to maintain the confidentiality of any information relating to the Borrower, its Subsidiaries or any of their respective businesses, to the extent provided or made available to it by or on behalf of the Borrower or any Subsidiary, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower or its Subsidiaries, except that such information may be disclosed (i) on a need to know basis to any Related Party of the Administrative Agent, such Issuing Bank or any such Lender including without limitation accountants, legal counsel and other advisors, (ii) to the extent required by Applicable Laws or by any subpoena or similar legal process, (iii) to the extent requested by any regulatory agency or authority purporting to have jurisdiction over it (including any self-regulatory authority such as the National Association of Insurance Commissioners), (iv) to the extent that such information becomes publicly available other than as a result of a breach of this Section 10.11, or which becomes available to the Administrative Agent, any Issuing Bank, any Lender or any Related Party of any of the foregoing on a non-confidential basis from a source other than the Borrower or its Subsidiaries, (v) in connection with the exercise of any remedy hereunder or under any other Loan Documents or under any Secured Hedge Agreement or Secured Cash Management Agreement, or any suit, action or proceeding relating to this Agreement or any other Loan Documents or under any Secured Hedge Agreement or Secured Cash Management Agreement, or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 10.11, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, or (B) any actual or prospective party (or its Related Parties) to any swap or derivative or similar transaction under which payments are to be made by reference to the Borrower, its Subsidiaries and their obligations, this Agreement or payments hereunder, (vii) to any rating agency, (viii) to the CUSIP Service Bureau or any similar organization, (ix) to market data collectors, or (x) with the consent of the Borrower. Any Person required to maintain the confidentiality of any information as provided for in this Section 10.11 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord its own confidential information.
For the avoidance of doubt, nothing in this Section 10.11 shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”), in each case without any notification to any person, to the extent that any such prohibition on disclosure set forth in this Section 10.11 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which may be treated as interest on such Loan under Applicable Law (collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding such Loan in accordance with Applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 10.12 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment, shall have been received by such Lender.
Section 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and warrants that it is not required to affix its corporate seal to this Agreement or any other Loan Document pursuant to any requirement of law or regulation, agrees that this Agreement is delivered by the Borrower under seal and waives any shortening of
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the statute of limitations that may result from not affixing the corporate seal to this Agreement or such other Loan Documents.
Section 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies the Loan Parties that, pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act and the Beneficial Ownership Regulation.
Section 10.15. Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
Section 10.16. No Advisory or Fiduciary Relationship. In connection with all aspects of the transactions contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lenders, the Co-Managers and the Lead Arrangers are arm’s-length commercial transactions between the Borrower and its Subsidiaries, on the one hand, and the Administrative Agent, the Lenders, the Co-Managers and the Lead Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, the Lenders, the Co-Managers and the Lead Arrangers is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Subsidiaries, or any other Person and (B) none of the Administrative Agent, any Lender, the Lead Arrangers or the Co-Managers has any obligation to the Borrower or any of its Subsidiaries with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, each Lender, the Co-Managers and the Lead Arrangers and their respective Subsidiaries may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Subsidiaries, and none of the Administrative Agent, any Lender, the Lead Arrangers or the Co-Managers has any obligation to disclose any of such interests to the Borrower or any of its Subsidiaries. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent or any Lender or the Lead Arrangers or the Co-Managers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 10.17. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability;
(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
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(iii)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
Section 10.18. Certain ERISA Matters.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)In addition, unless either (1) clause (a)(i) above is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with clause (a)(iv) above, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 10.19. Acknowledgement Regarding Any Supported QFCs. Notwithstanding anything to the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and
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the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)As used in this Section 10.19, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the date first above written.

| THE E.W. SCRIPPS COMPANY, as the Borrower
| By: /s/ Jason Combs
| Name: Jason Combs |
| Title: Chief Financial Officer |

[Signature Page to Credit Agreement]

| JPMORAN CHASE BANK, N.A., as Administrative Agent, as an Initial Revolving Credit Lender, as an Issuing Bank, and as Swingline Lender
| By: /s/ Christopher L. Beery
| Name: Christopher L. Beery |
| Title: Vice President |

[Signature Page to Credit Agreement]

[Lender signature pages on file with the Administrative Agent]
[Signature Page to Credit Agreement]